Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also appearing, Arthur Walsh, deputy city attorney; John S. Schuster, Esquire, and Thomas J. Nolan, Esquire, on behalf of Gretchen Stockdale.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(A conference was held in chambers, not reported.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Mr. Harmon and Miss Clark. The jury is not present. We previously had scheduled a hearing with the Los Angeles city attorney regarding certain records held by the Los Angeles Police Department Internal Affairs Division. And I have conferred with counsel in chambers and we have agreed to complete the testimony of Professor Terence Speed before we proceed to that argument to allow Mr. Uelmen to be here for purposes of that argument. Is that correct, Mr. Cochran?

MR. COCHRAN: Yes, your Honor, that's correct.

THE COURT: Miss Clark?

MS. CLARK: Yes, your Honor.

THE COURT: All right. Anything else before we resume with Dr. Speed?

MS. CLARK: Yes. Very briefly. Mr. Kelberg will be down to address the Court concerning the matter of the further discovery. Dr. Baden and Wolf were both here during the testimony of Dr. Lakshmanan and took copious notes that we observed. In the package of discovery that was just delivered to us last night, there was nothing like that and so we are asking for the Court to require that those notes be turned over to us.

THE COURT: All right. Well, we will take that up when Mr. Kelberg joins us.

MS. CLARK: Thank you, your Honor.

THE COURT: All right. Thank you.

MR. SHAPIRO: We are going to object strenuously. That is not discoverable. That is clearly work product.

THE COURT: Well, we will get to that when we get to that. All right. Deputy Magnera, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And the record should reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: And Professor Speed, would you resume the witness stand, please.

Terence Speed, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. Let the record reflect that Professor Terence Speed is again on the witness stand now to undergo cross-examination by Mr. Harmon. And Professor Speed, good morning.

PROF. SPEED: Good morning, sir.

THE COURT: Sir, you are reminded that you are still under oath. And Mr. Harmon, you may commence with your cross-examination.

MR. HARMON: Thank you, your Honor. Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION BY MR. HARMON

MR. HARMON: Professor Speed, it is true, is it not, that you have never written an article relying on any aspect of the NRC report?

PROF. SPEED: That is true.

MR. HARMON: It is true, it is the not, that you have never given any lecture relying on any aspect of the NRC report?

PROF. SPEED: Not a very public lecture. I have given talks at UC Berkeley on this topic in which I have made references to the report.

MR. HARMON: Okay. Professor, I have asked you whether or not you have given a lecture which relied on any aspect of the NRC report. Have you?

PROF. SPEED: Yes.

MR. HARMON: And you have relied on it?

PROF. SPEED: I'm sorry, if--relied in the sense of quoting it and using it as any source of information? Yes.

MR. HARMON: And basing your opinion on it?

PROF. SPEED: Yes.

MR. HARMON: Will you describe the relationship of the national research council to the national academy of sciences.

PROF. SPEED: Well, as I understand it, the national research council is a separate body funded by the United States government to produce reports and I think hold symposia and it is--it has some affiliation to the national academy of sciences, but it is formally a separate organization. I think the national academy of sciences plays a fairly important role in the selection of topics and the management of the NRC, but as I say, I think they are separate bodies. That is my understanding.

MR. HARMON: And the national academy of science in this country represents the elite in various fields of science; is that true?

PROF. SPEED: That is certainly true.

MR. HARMON: The national research council, the body that you mentioned, do those members also represent the elite in specific areas?

PROF. SPEED: Well, certainly, yes.

MR. HARMON: Would you agree that the members of the committee that produced the report that you've quoted, "DNA technology in forensic science," that those members are elite?

PROF. SPEED: I would agree with that.

MR. HARMON: Would you agree that they are eminent.

PROF. SPEED: These words have different meanings to different people, but I think it is fair to say that each of them are eminent in their own field, but I am not really in a position to Judge everybody because they are not all in my field, but I think that is a reasonable understanding that that would be the case.

MR. HARMON: They are eminent?

PROF. SPEED: Yeah.

MR. HARMON: Victor McKusick, the chairman of the committee for technology in forensic science, do you know who he is?

PROF. SPEED: I certainly know he is and there is no doubt it he is eminent?

PROF. SPEED: Quite eminent.

MR. HARMON: What other members of the committee or association are you familiar with?

PROF. SPEED: I certainly know Professor Mary-Claire King who up until very recently was a member of my own university, Professor David Kay from the University of Arizona. May I look at the list?

MR. HARMON: Are you mistaken that David Kay is on the first NRC committee?

PROF. SPEED: Perhaps I am. Perhaps I am.

MR. HARMON: Sure. Those are the ones that you can recall right now?

PROF. SPEED: I have a suspicion there is more. Certainly Eric Lander, Professor Eric Lander, Whitehead Institute, I know him very well.

MR. HARMON: George Sensabaugh?

PROF. SPEED: Yeah, colleague at the University of California Berkeley. I know him well.

MR. HARMON: Okay. Why don't you look at the list.

PROF. SPEED: May I?

MR. HARMON: And tell us which other members you know well.

PROF. SPEED: (Witness complies.) I have met Mr. Henry Lee. Know well would not be a correct description. I have met Dr. Thomas Marr on numerous occasions and know well in a professional sense. And that would be about it. I have certainly read writings by a number of the other authors, but I think I have mentioned all of the people that I have personal acquaintance with.

MR. HARMON: Of the people that you have--or the members with which you are personally and professionally acquainted, you consider them to be eminent, do you not?

PROF. SPEED: Yes, yes.

MR. HARMON: No shortcomings in their field?

PROF. SPEED: Everybody has shortcomings. I mean, eminent is kind of a blanket word. That doesn't mean somebody is perfect, so eminent is just something that people have--you know, a description that people have when they are senior and experienced, so I don't think it would be fair to say that it implies they have no shortcomings.

MR. HARMON: Did you yourself make any contradictions to the first report by the committee on DNA technology?

PROF. SPEED: No, I did not.

MR. HARMON: None whatsoever?

PROF. SPEED: No.

MR. HARMON: You first became aware of these issues I believe you mentioned at a meeting at USC in 1990?

PROF. SPEED: That's correct.

MR. HARMON: Do you recall me being there, too?

PROF. SPEED: I don't actually, I'm sorry.

MR. HARMON: Have you yourself made any contradictions to the new committee that is in progress of writing a report?

PROF. SPEED: I have.

MR. HARMON: What have the nature of those contributions been?

PROF. SPEED: I contributed to a letter by Professor Joel Cohen from the Rockefeller University which addressed the issue of proficiency testing to estimate error rates.

MR. HARMON: Would you agree that the report is considered on some level as a consensus report from the respective members?

PROF. SPEED: Yes, I would agree with that.

MR. HARMON: Now, Professor, would you agree that--or do you feel that--and this is talking about this report, (Indicating), that it amazed you how its assumptions escaped the notice of all the eminent people on the NRC panel, and then in parentheses "Sarcasm intended"?

PROF. SPEED: That does sound like a quotation from something I have written.

MR. HARMON: And do you feel that way?

PROF. SPEED: On the specific issue that I was speaking of, yes.

MR. HARMON: So you don't feel that those people were eminent in certain aspects of their report?

PROF. SPEED: Well, I've already said that I don't regard eminent as implying infallibility. Eminent people can make mistakes.

MR. HARMON: Who chose the quotations that Mr. Neufeld flashed up here for the jury yesterday.

MR. NEUFELD: Objection.

PROF. SPEED: Well, he had some of them, but in fact every single one of them I have indicated in my copy already has things that I agree with very strongly and would like to see come about.

MR. HARMON: When you say "He," Mr. Neufeld?

PROF. SPEED: Yes, I'm sorry. Mr. Neufeld was aware of some of them; not all of them, but they are all ones that I had, in advance of discussing the matter with him, singled out as important.

MR. HARMON: Okay. Now, the quote that I just read to you, and I will give you a chance to show it to you--I want to show it to counsel first--this quote is actually from a letter you wrote to Professor Weir, isn't it?

PROF. SPEED: Umm--

MR. NEUFELD: Your Honor, may we approach for a second, please?

THE COURT: Yes. With the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: All right. We are at the side bar.

MR. NEUFELD: I just want to note for the record that before we started to cross-examine the witness today I approached Mr. Harmon and I said, "Are there any exhibits or documents that you intend use for impeachment purposes with this witness?" And he said, "No, there are none." That is what he said to me off the record before we began today. And for the first time in the middle of the examination he is producing this letter and that violates your discovery order that all exhibits you attempt to use are to be shown to opposing counsel prior to the commencement of their testimony, be it direct or be it cross.

THE COURT: All right.

MR. NEUFELD: I haven't even read this letter yet, so I would object initially because of the discovery violation from--to referring to it or doing anything on it because he did fail to show me it before we started today when I specifically asked him if there is anything.

THE COURT: All right. Mr. Harmon, what is this?

MR. HARMON: Well, we have to distinguish between exhibits--what is the difference between this and a transcript, your Honor? I fail to see the difference.

THE COURT: Listen to my question carefully.

MR. HARMON: I'm sorry.

THE COURT: What is this?

MR. HARMON: This is a letter that the good professor wrote to Bruce Weir. I mean, he exploited this yesterday when he said, "Bruce solicited my input on paper I was writing one day," so this is Professor Speed's critique of Professor Weir's paper that ultimately got published. And I'm shocked to hear that they had no idea that they had never seen this before.

MR. NEUFELD: I'm just saying I haven't seen it, but that is not the point. The point is he should have shown me this before we started.

THE COURT: This is a statement by this witness. This is more in the line of direct impeachment.

MR. NEUFELD: I need five minutes to read it.

THE COURT: All right. Read it.

(The following proceedings were held in open court:)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Your Honor, may we have a side bar again, please?

THE COURT: Proceed. Proceed.

MR. NEUFELD: Okay.

THE COURT: Do you have a copy of that?

MR. NEUFELD: No.

THE COURT: That is your only copy, Mr. Harmon?

MR. HARMON: Sure, absolutely.

THE COURT: Would you have Miss Carswell make a copy of this, please.

MR. HARMON: No, I have got a copy.

THE COURT: All right. We have got a copy. Proceed.

MR. NEUFELD: Thank you.

MR. HARMON: Your Honor, may this be marked as People's next in order, your Honor?

THE CLERK: 577.

THE COURT: 577.

(Peo's 577 for id = document)

MR. HARMON: Professor Speed, I would like you to look at People's 577 for identification. Is that the letter that you were referring to when you mentioned yesterday that Professor Weir solicited your input on an article he was writing?

PROF. SPEED: Yes, that is the letter.

MR. HARMON: Are those your comments, or many of them, with respect to different areas of the article he had given to you?

PROF. SPEED: Yes.

MR. HARMON: Okay. And did I accurately read the--

PROF. SPEED: Could you remind me what section it is in?

MR. HARMON: Sure. It is on the last page, your item no. 11 on the third page.

PROF. SPEED: Yes.

MR. HARMON: Okay. Could we put the third page of 577 up on the elmo, your Honor?

MR. NEUFELD: Your Honor, objection.

THE COURT: May I see it, please?

(Brief pause.)

THE COURT: All right. Let me see counsel at the side bar.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the side bar. Peter, what is your objection?

MR. NEUFELD: Your Honor, first of all, the reason I asked for side bar before is now that I see the context in which Dr. Speed--look at paragraph--11 made the remark about assumptions in the report, it had nothing to do with what they wrote about error rates. It had to do with their discussion of the ceiling principle and the ceiling principal is completely beyond the scope of this man's direct. I have been extremely careful not to get into ceiling principle, substructures or any of those issues at all. This entire letter--

THE COURT: Isn't the point here that he is making fun of the staff of the scholar who put together the report?

MR. NEUFELD: He is not making fun. What he is saying is, "It amazed me that assumptions escaped the notice of all the eminent people in the NRC panel." But the assumption is not an assumption at all having to do with his testimony as to error rates and the statistics involving error rates. It has to do with a completely separate issue--this was brought up in the Frye hearing--the ceiling principal, the product rule. He has not offered any testimony on the ceiling principle. That is different. The paragraph is simply limited to the committee's dealing with the ceiling principle and what is going to happen here is two problems; a 356 issue about completeness, and more importantly, we are going to have a 352 problem because we are going to get into the ceiling issue. We will get into all the issues about the ceiling principle and the product rule. You are talking about days of extra testimony and other witnesses and Professor Quinn coming in to testify about substructure and the like. It is absurd. This--

THE COURT: You mean that comment brings all of that into play?

MR. HARMON: I hope not.

MR. NEUFELD: It brings in the ceiling principle and the product rule and the statement, "It amazed me about its assumptions" is clearly referring to the way the NRC committee handled the issue of the product rule and the ceiling principle. It is clearly referring to that. It is not referring to anything at all--it is not referring to anything at all that he has testified to. It would be as if, let's say, he criticized the NRC report. For a statistician, I understand that, but he is saying he was a scientist who says--criticizes the NRC for their assumptions about the role of lawyers or something.

THE COURT: All right. Mr. Harmon.

MR. HARMON: Thanks, your Honor. Nice to get to say something. It is criticizing the people and here is the point. All those flashy quotes yesterday, half of them are from section 3 or chapter 3 and that is from this chapter. He is criticizing the people that wrote chapter 3. And I am entitled to elicit names, and the reality is there are two people who he thinks very highly of; Mary-Claire King and Eric Lander, so at least in terms of how he feels about those people and their product, which is chapter 3, I think I'm entitled to--I mean, I've already elicited--I just want to put it there and ask him a few more questions.

MR. NEUFELD: First of all, there is no testimony that those people wrote chapter 3. The lawyers already elicited that it is a consensus of opinion from the NRC committee people. There is no testimony that this chapter was written by one person or two people or three people. It is a completely unrelated point.

MR. HARMON: Can I just say something?

THE COURT: We've heard enough. This is a big tempest in a teapot here.

MR. HARMON: It is.

THE COURT: Mr. Harmon, I'm going to preclude you from putting this up on the elmo because it is just one sentence--

MR. HARMON: Uh-huh.

THE COURT: --out of a long letter. You may use the sentence, "It amazed me how its assumptions" referring to that particular chapter of the NRC report.

MR. HARMON: I can do that.

MR. NEUFELD: I wouldn't say chapter. He can say ceiling principles, ask him about that.

THE COURT: If you get into ceiling principles you open up all the problems. That is my suggestion. Don't go away.

(Brief pause.)

THE COURT: Okay.

MR. NEUFELD: The only thing I want to say is, your Honor, if you want to let him ask a question about assumptions, I would then say that the remarks should be limited to assumptions about the method for calculating that frequency so you don't write out the words "Ceiling principle."

THE COURT: This is a comment regarding the people who did the report and their, quote, eminence or non-eminence. All right. That is what it is restricted to.

MR. NEUFELD: Okay.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. HARMON: Professor Speed, yesterday a series of quotes from the NRC report that I've just asked you about were flashed up on the screen and you were asked whether or not you agreed with them. Do you recall that?

PROF. SPEED: I do.

MR. HARMON: And approximately half of those comments were from chapter 3 of the report "DNA technology in forensic science," were they not?

PROF. SPEED: Well, if you would like me to check.

MR. HARMON: Would you like to check that?

PROF. SPEED: I will.

MR. HARMON: Okay. Starts on page 74.

PROF. SPEED: Uh-huh.

MR. HARMON: Through 96.

PROF. SPEED: That seems about right, yes.

MR. HARMON: Okay. And chapter 3 was the source or the area that you made your comment in the letter to Bruce Weir that is dated September 29, 1992, was it not?

PROF. SPEED: That is correct.

MR. HARMON: Okay. And the areas from which quotes were elicited yesterday had to do with laboratory error rate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Now, when you wrote this letter to Professor Weir in September of 1992, when you said, quote, "It amazed me how its assumptions escaped the notice of all the eminent people on the NRC panel," parentheses "Sarcasm intended," end parenthesis, you were criticizing the people, whoever they were, that produced part of chapter 3, were you not?

MR. NEUFELD: Objection. I would just ask that he have a chance to look at the letter before he answer the question.

THE COURT: Yes.

MR. HARMON: Would you like to look at the letter again, exhibit 577?

MR. NEUFELD: Mr. Harmon, hold on.

THE COURT: It has been pointed out to him already.

MR. NEUFELD: Sorry.

PROF. SPEED: May I point out that the assumptions I pointed out referred to the so-called ceiling principle.

MR. HARMON: And the eminent people that you pointed out with sarcasm intended were the eminent people in chapter 3, weren't they?

PROF. SPEED: Yes.

MR. HARMON: Who were they?

PROF. SPEED: We just discussed the names of the people I know. Do you want me to go through the list of names again?

MR. HARMON: Did you ever discuss chapter 3 with Mary-Claire King?

PROF. SPEED: No, I did not.

MR. HARMON: Did you discuss it with Eric Lander?

PROF. SPEED: No.

MR. HARMON: Now, Professor Weir, the first case that you became involved--

THE COURT: Speed.

MR. NEUFELD: Objection.

MR. HARMON: I'm sorry. Professor Speed, the first case that you became involved in was a capital case in San Francisco, People versus Briggs; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And what year did you first become involved in that case?

PROF. SPEED: I believe it was 1992.

MR. HARMON: That was a capital case, wasn't it?

PROF. SPEED: I believe so, yes.

MR. HARMON: Okay. You have some extreme views about capital punishment or death penalty in the United States, don't you?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: May we approach on that, your Honor?

THE COURT: No.

MR. HARMON: What was the other case you became involved in? You mentioned two cases yesterday.

PROF. SPEED: It was a case with Contra Costa County and I believe the Defendant's name was Robert Taylor.

MR. HARMON: Okay. Did you ever testify in that case?

PROF. SPEED: No.

MR. HARMON: Your CV lists 120 articles and chapters, does it not?

PROF. SPEED: Yes, it does.

MR. HARMON: None deal directly with the application of statistics in forensic settings, do they?

PROF. SPEED: That is correct.

MR. HARMON: Do you have a copy of your CV in front of you?

PROF. SPEED: I do.

MR. HARMON: I would like you to refer to the item that is numbered 111 on your CV, if you would.

PROF. SPEED: Yes.

MR. HARMON: Okay. Would you tell the ladies and gentlemen of the jury what the role of statistics plays in that article?

PROF. SPEED: I was assisting in the analysis of data that had been collected for a study on aids, so statistics was involved in the analysis of the data.

MR. HARMON: In what way?

PROF. SPEED: Well, it was a group of male homosexuals, some of whom were HIV positive at one time and not at a previous time, some of whom were HIV negative throughout the entire period, and there was--this group of male homosexuals were cross-classified according to various sexual practices that they had admitted indulging in or that had taken place or that they had been involved in over the period that would have related to when they might have gone from being HIV negative to HIV positive, if that was that group, or when they remained HIV negative throughout the entire period, if that was the other group.

MR. HARMON: And in what way does your--or does your contribution to that article demonstrate any connection between HIV and aids?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: It is true, is it not, that of the 120 articles and chapters, you have never expressed any concerns that you seem to have expressed yesterday about the role of forensic DNA typing in the legal system? Isn't that true?

PROF. SPEED: I have not written any papers in this list about that topic, that is true.

MR. HARMON: About what you talked about yesterday?

PROF. SPEED: That is correct.

MR. HARMON: Okay.

PROF. SPEED: In papers. As I said earlier, I expressed these views in a letter to the second NRC report on this same topic.

MR. HARMON: You mentioned that you have previously served on editorial boards, have you not?

PROF. SPEED: That is correct.

MR. HARMON: Would you briefly describe the role of an editor and the responsibilities that are attendant to that role.

PROF. SPEED: Well, I've mainly been associate editor, not the top editor, so the associate editor's role is usually to look at papers as they come in, as they are submitted for publication, and choose referees, people who will review the papers, get the reports from the referees, synthesize them into an overall report on the paper, which is then transmitted to the editor with a recommendation for the treatment of that paper.

MR. HARMON: And do you take that role very seriously?

PROF. SPEED: Of course.

MR. HARMON: Why is that?

PROF. SPEED: It is one of my professional responsibilities.

MR. HARMON: And what would happen if something fell through the cracks, a published article fell through the cracks without your careful review?

PROF. SPEED: I don't understand what you mean by "Fall through the cracks."

MR. HARMON: Sure. If you hadn't carefully reviewed something and then an article emerged in the peer review literature with your name on it as an editor.

PROF. SPEED: Well, usually articles don't appear in the literature that I am associated with with my name on it as editor, but I'm afraid I still don't understand what you mean.

MR. HARMON: Okay. If you were not careful in your review of an article and the article were published, what are the consequences of the implications of an article with faulty scientific data in it appearing in the peer review literature?

PROF. SPEED: Well, usually if an article appears in the peer review literature, it is regarded as the responsibility of the author. The editors may be unhappy that they let it slip through, but ultimately authors are responsible for their publications. And if there are errors, that responsibility goes home to the person that made those errors, though it may cast some doubt on the quality of the reviewing process.

MR. HARMON: When were you first contacted to be associated with the Defense in this case?

PROF. SPEED: September, 1994.

MR. HARMON: And when did you first meet with any Defense counsel in this case?

PROF. SPEED: I think a month or two after that they visited Berkeley and we talked.

MR. HARMON: Who did you meet with?

PROF. SPEED: Mr. Scheck and Mr. Neufeld made the initial visit to Berkeley to talk with me.

MR. HARMON: And did you take any notes of this event?

PROF. SPEED: No.

MR. HARMON: And when was the next time that you met with the Defense in this case?

PROF. SPEED: Umm, I think about April this year, either I was briefly in Los Angeles or--not Mr. Scheck on this occasion--Mr. Neufeld came to Berkeley. Those two communications occurred rather close together. One of them was when I was here and another was when Mr. Scheck--excuse me--Mr. Neufeld and Mr. Thompson came to Berkeley.

MR. HARMON: Did you do any work whatsoever between September and April on this case?

PROF. SPEED: I did lots of work, yes. Work in the sense of reading and thinking and so on.

MR. HARMON: Okay. Are those things that you would have done regardless of this case?

PROF. SPEED: This case has given me an opportunity to get much more deeply into the issues than I might have otherwise, there is no doubt about that, so I couldn't say that I would have done it had the case not been around, no.

MR. HARMON: Now, you wrote no report?

PROF. SPEED: (No audible response.)

MR. HARMON: Is that true?

PROF. SPEED: That is correct.

MR. HARMON: You made no notes of any of the sessions that you had with Defense counsel in this case; is that true?

PROF. SPEED: I have written things. They are not notes of sessions and they are not reports, but I have written brief memos way, way back last--before Christmas.

MR. HARMON: What do those memos consist of?

PROF. SPEED: Well, they were being prepared at the time I thought I was being involved in a Kelly-Frye hearing, and I prepared rather small number of notes on what I considered important issues, the usual sort of thing, you know, the product rule, that--just two or three of the contentious areas which I think--well, you would be familiar with. If you would like me to enumerate them, I will try to remember.

MR. HARMON: That is okay. Now, you knew, before you testified yesterday, that I would be cross-examining you; is that true?

PROF. SPEED: Not really, no.

MR. HARMON: Did you receive a letter from me?

PROF. SPEED: You mean in the last two weeks?

MR. HARMON: Uh-huh.

PROF. SPEED: Yes.

MR. HARMON: Did you receive two letters from me?

PROF. SPEED: I did.

MR. HARMON: And the first letter I asked for an opportunity to meet with you about your views; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And I had advised you that I had no idea what you were going to testify about; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And I would like--I wanted an opportunity to sit down and talk with you ahead of time; isn't that true?

PROF. SPEED: That is what you said in your fax.

MR. HARMON: Did you believe that?

PROF. SPEED: Oh, I believed it.

MR. HARMON: That I wanted to find out what you had to say?

PROF. SPEED: Yes.

MR. HARMON: Okay. And you were in town during that week, in this town?

PROF. SPEED: I was in this town.

MR. HARMON: Isn't that true? And you faxed me a cordial response declining the opportunity to talk to me; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And then I faxed you a second letter; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And describe the nature of your relationship with Professor Weir.

PROF. SPEED: Well, he is obviously a professional colleague who works in the area of statistics and genetics and that is not a very large field, so we cross paths not terribly often, but from time to time. I regard him as a friend as well. I have visited him and stayed in his home in North Carolina.

MR. HARMON: So he is a personal friend?

PROF. SPEED: I wouldn't say a close personal friend, but definitely a personal friend.

MR. HARMON: Professionally you respect him?

PROF. SPEED: Certainly.

MR. HARMON: Disagree with him sometimes?

PROF. SPEED: Absolutely.

MR. HARMON: Okay. Now, in the second letter I propose that you discuss whatever you would testify about with Professor Weir, didn't I?

PROF. SPEED: You did.

MR. HARMON: And you never responded to that letter or acknowledged that letter; isn't that true?

PROF. SPEED: No, that is not.

MR. HARMON: You did?

PROF. SPEED: I did.

MR. HARMON: You responded to it?

PROF. SPEED: I responded.

MR. HARMON: And where did that response go to?

PROF. SPEED: It was faxed to the number you get when you ring the address that you had on your letter and just I brought a copy of the acknowledgment that the fax was sent to that place and went to the--

MR. HARMON: What did you say in your response?

PROF. SPEED: Could I perhaps look at a copy to remind me?

MR. HARMON: I never got it.

PROF. SPEED: I do have copies here.

MR. HARMON: Sure.

PROF. SPEED: Would it possible for me to ask Mr. Neufeld to give me a copy?

THE COURT: Sure.

(Brief pause.)

MR. NEUFELD: May I approach each person?

(Brief pause.)

PROF. SPEED: Shall I read my reply?

MR. HARMON: Sure.

PROF. SPEED: It went to the Los Angeles County District Attorney's office bureau of central operations special trials and that is the fax number I got when I phoned because the previous fax number didn't work for some reason. (Reading.) Dear Mr. Harmon: Thank you for your fax dated July 27, 1995, requesting that I discuss my anticipated testimony with Dr. Bruce Weir. With respect I decline. Yours sincerely, Terry Speed."

MR. HARMON: Now, knowing that you are a personal friend of Dr. Weir and knowing you have a professional respect for him, why did you decline to talk to him so that we might know what you would testify about in advance?

PROF. SPEED: Well, the reason was that I would have felt very uncomfortable because I know that my testimony would have been disagreeing publicly with positions he has held publicly, for example, reading out a quote that you heard me attest to that I disagreed with of Dr. Weir, that sort of thing. Honestly don't feel very comfortable chatting on the phone with a professional colleague just before I'm about to go into this sort of situation and disagree with him. I would have thought that is not a very unusual human reaction.

MR. HARMON: Now, this is the man who invited your comments on his review article, Professor Weir?

PROF. SPEED: Yes.

MR. HARMON: And you felt uncomfortable speaking to him 3000 miles away on the phone?

PROF. SPEED: Yes.

MR. HARMON: Okay. Now, you criticized yesterday Professor Weir's calculations for assuming that there was no error in the tests? Do you recall that?

PROF. SPEED: I'm sorry, I criticized--

MR. HARMON: You criticized Professor Weir's population frequency calculations simply because they assumed that there was no error in the testing methods. Do you recall that yesterday?

PROF. SPEED: May I clarify what I said?

MR. HARMON: Well, did you say that yesterday?

PROF. SPEED: No, I did not say that.

MR. HARMON: What did you say yesterday?

PROF. SPEED: I said that I thought the assumption is inappropriate in this context. I made no reference that I was aware of to the actual figures. I was criticizing the assumption, because it seems to me an improper assumption to make in this context when there clearly is a possibility of lab error and other kind of error, that anything predicated on the assumption there was not--seems to me to be suspect.

MR. HARMON: Now, your views on the role of assumptions in statistics are far from mainstream and you have found that many times with census adjustment reactor safety, haven't you?

MR. NEUFELD: Objection, irrelevant and argumentative.

THE COURT: Sustained. Rephrase the question.

MR. HARMON: Professor Speed, is it true that your views on the role of assumptions in statistics are far from mainstream?

MR. NEUFELD: Objection, vague as to assumptions and statistics.

THE COURT: Overruled.

PROF. SPEED: That is a correct statement that I put in my letter to Professor Weir, yes. I certainly feel that not enough attention is paid to the role of assumptions in doing statistical calculations and in particular evaluating probabilities, such as associated with nuclear reactors, evaluating probabilities such as those associated with incorrectly concluding that a given individual is the source of a stain. Assumptions are critical in my view, and that is why I said that.

MR. HARMON: And you admit that your views on assumptions are not mainstream, right?

PROF. SPEED: That is what I said in the letter.

MR. HARMON: Well, have they become mainstream since 1992?

PROF. SPEED: In this particular context I've become more convinced that I have broad support. I was prevented from mentioning names yesterday of many eminent statisticians who agree with me.

MR. HARMON: Well, I move to strike that.

THE COURT: It is nonresponsive. Reask the question.

PROF. SPEED: Could you repeat the question, please?

MR. HARMON: I will ask a question, professor. Let's go back to what Professor Weir did when he presented his population frequency calculations to this jury. Okay. How else could the jury appreciate the significance of a genetic match if they decided that no error was in fact performed?

PROF. SPEED: Well, in that case Professor Weir's calculations would probably be the most relevant thing.

MR. HARMON: And the quote from page 88 of the national research council report prohibits combining the population frequencies estimate and the laboratory error rate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Now, assumptions do play a role in all sorts of statistical endeavors, don't they?

PROF. SPEED: Of course, yes.

MR. HARMON: Let me give you an example. You know the kind of map, I think it is called a Mercator projection map that takes the world as a glove and flattens it out--I think that is the right term for it--

PROF. SPEED: Well, there are a number of such projections.

MR. HARMON: Okay. So if I said to you, Professor Speed, assume the earth was flat, as one of these maps represent, and I was in Chicago and I could walk westbound directly, you could tell me how long it would take me to fall off the edge, if I walked westbound at five miles an hour, couldn't you?

PROF. SPEED: Well, I think if it was made a little more precisely, I probably could. I'm not quite sure I'm following exactly.

MR. HARMON: Sure. And the assumption that is wrong is the earth, isn't flat?

PROF. SPEED: Yes, that is--

MR. HARMON: But if I forced you to make that assumption, you could do that sort of calculation, couldn't you?

PROF. SPEED: I could, yes.

MR. HARMON: Can we see People's exhibit 564, the testing--

(Discussion held off the record between the Deputy District Attorneys.)

MR. HARMON: Now, you have not spent any time reviewing the Los Angeles Police Department files on this case, have you?

PROF. SPEED: I have spent a little time, but as you would know, that is outside my area of expertise, so I haven't made any attempt to master it completely.

MR. HARMON: But you were here for Dr. Gerdes' testimony?

PROF. SPEED: Yes.

MR. HARMON: Okay. And you heard him discuss the possibilities that cross-contamination might have occurred in various places?

PROF. SPEED: I did.

MR. HARMON: And were you here for the demonstration which showed on People's exhibit 564, which demonstrated the history of samples 48, 50 and 52, the replicate testing demonstration?

PROF. SPEED: May I consult my little crib sheet to see what those samples are?

MR. HARMON: Sure.

PROF. SPEED: (Witness complies.)

MR. NEUFELD: Your Honor--

THE COURT: Counsel, he gets to conduct his examination the way he want to.

PROF. SPEED: These are Bundy walk drops. I wasn't actually here for that, but I--

MR. HARMON: Now, you don't know whether any error actually occurred with the handling of those samples, do you?

PROF. SPEED: I certainly don't, no.

MR. HARMON: If you knew, if you were able to trace the history of those samples, you would be able to try to troubleshoot the likelihood that those samples might have gotten cross-contaminated, wouldn't you?

PROF. SPEED: Well, that wouldn't be my job; that would be a job for a microbiologist.

MR. HARMON: Well, you mentioned common mode failure yesterday. Do you recall that?

PROF. SPEED: I did, yes.

MR. HARMON: Common mode failure, somebody traced the electrical system to find out that all three of these systems were wired through the same box?

PROF. SPEED: They did that after the fire.

MR. HARMON: They did that after. Could you just define that common mode failure again, please.

PROF. SPEED: Well, it is used in a context where two or more systems can be--in the reliability context, can fail as a result of some common cause, even though it is usually used in a context where beyond that common cause they are actually operating independently, so that the only real common connection between them is this initial one.

MR. HARMON: It is a bottleneck they all go through?

PROF. SPEED: Well, you could say that.

MR. HARMON: One way of describing it?

PROF. SPEED: One way.

MR. HARMON: And do you know whether--have you evaluated the flow of samples in this case to determine whether there are bottlenecks or common comes in the handling of any of the samples?

PROF. SPEED: Well, I have looked at it closely enough to see the possibility, but as I say, evaluating them in a professional sense is outside my area of expertise.

MR. HARMON: In a statistical sense--

PROF. SPEED: Yes.

MR. HARMON: --you could?

PROF. SPEED: Well, when you know enough about a process to see that things which might initially be together, then get split and have an independent existence or an independent processing thereafter, when I have seen this situation often enough to know that that--the probabilities get reduced if there is consistency in the later analyses, but that the possibilities of some--in this case we are talking contamination occurring at the earliest stages before that was split--is an instance of this common mode that I've been talking about, so I have seen enough, without being an expert, to see the possibility.

MR. HARMON: What have you seen?

PROF. SPEED: Well, information about some of the, if you like, life histories of some of these samples.

MR. HARMON: Well, tell us about 48, 50 and 52 then.

PROF. SPEED: I'm afraid I don't have a detailed recollection of any of these. I have just seen enough to see the possibility.

MR. HARMON: Well, what have you seen that is enough to contradict the possibility of those samples suffered from common mode failure?

PROF. SPEED: Well, simply listen to Dr. Gerdes' testimony is enough to see the possibility of something happening at the beginning before things part ways. That is enough for me. I don't have to, at least from my point of view, to recognize this possibility, I don't have to read LAPD files or understand the testimony, as far as I'm concerned.

MR. HARMON: So let me get a clear idea what you heard of Dr. Gerdes' testimony. You heard his direct examination; is that true?

PROF. SPEED: Some of it.

MR. HARMON: Did he directly address whether common mode failure or anything analogous like that might have occurred with 48, 50 and 52 specifically?

PROF. SPEED: I don't recall that, but he may have. I don't claim to have followed every detail of the testimony.

MR. HARMON: But whatever he said was enough for you to recognize the possibility, is that what you are--

PROF. SPEED: I'm not making statements specific to items 49, 50 and 52. I was talking about processes in general. And I think I know enough about processes in general to see that there are initial phases where things might be together and then later phases where they are being treated independently, and that the behavior of errors and the overall probability of an inconsistency has to have that sort of temporal and spacial flow. That is about the level at which I'm testifying, not in detail about particular drops or particular samples.

MR. HARMON: So that temporal and spacial flow that you have perceived through Dr. Gerdes' testimony, that in fact does not relate to any specific item of evidence in this case, does it?

PROF. SPEED: No, it is not--I'm not standing up here testifying to probabilities relating to items of evidence specifically, no.

MR. HARMON: Could we see 564.

(Brief pause.)

THE COURT: Can you see that clearly, doctor?

PROF. SPEED: I will have to absorb it, but I can see it.

MR. HARMON: Sure.

MR. HARMON: Just get familiar with that. Are you familiar enough with what is shown there?

PROF. SPEED: If I can refer back to it if you ask me a question about it.

MR. HARMON: Sure, sure. I want you to assume that all three of those samples which you know are from the Bundy walkway were typed by the three different laboratories in this case, the Los Angeles Police Department, California Department of Justice DNA lab and Cellmark, and that they all produced the same DQ-Alpha results. Okay?

PROF. SPEED: Right.

MR. HARMON: And in your jargon, the common mode failure where these samples seem to have diverged would be on June 14th in the evidence processing room; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And if those samples were all--all produced the same type, that suggests that if there was common mode failure it had to have happened on June 13th or June 14th?

MR. NEUFELD: I'm sorry, objection to the way he said 13th and then 13th or 14th and then ask him to rephrase the question.

THE COURT: Rephrase the question.

MR. HARMON: That if there was common mode failure it would have to have happened on June 14th when they were all together for the last time?

MR. NEUFELD: Objection. I think that misstates the evidence.

THE COURT: Overruled.

PROF. SPEED: I'm not making statements with that degree of specificity. In particular, it would seem to me I would need to be a microbiologist or somebody very knowledgeable in this to say when errors occurred. All I was talking--speaking to was the possibility of errors in that initial phase before they were split being analogous to common cause errors, and if you wanted to get the overall probability of the final consistent results being erroneous results, then you would have to consider that step in the process.

MR. HARMON: To put it--I'm sorry, go ahead.

PROF. SPEED: I'm certainly not saying that that is the only way in which an error could have affected all of them, but it is a way, as I think should be clear from the flow chart.

MR. HARMON: Well, if no error was made on June 14th in the sampling in the evidence processing room or on June 13th in the evidence processing room, then there is no reason to believe that the results produced by those three labs are incorrect; isn't that true?

PROF. SPEED: I can't agree with that statement.

MR. HARMON: What reason do you have to believe that based on the chronology of those samples?

PROF. SPEED: Again, I'm afraid I have to be general. You said there was no reason to believe. Nuclear reactors have done very bad things because people had no reason to believe that whatever mechanical function actually happened might have happened. In other words, the fact that you have no reason to believe it doesn't actually mean it is true. I'm not here testifying that it is impossible or that it is necessary that errors may or may not happen in some places. We are talking about probabilities, about chances of errors occurring, and they exist regardless of whether in any particular instance somebody may have no reason to believe they occurred. The chance of errors is something which is ever present in this sort of human activity.

MR. HARMON: You could walk out in the street and get hit by a car crossing the street, couldn't you?

PROF. SPEED: I believe that is a possibility.

MR. HARMON: Do you have a reason to believe that is going to happen?

MR. NEUFELD: Objection, irrelevant.

THE COURT: Sustained.

MR. HARMON: What significance do you attribute to the fact that given the flow of those samples each of the three labs produced the same result?

PROF. SPEED: Well, that suggests--but again this is an area of professional expertise beyond mine, because I speak to statistics and probability, whereas you are talking now about interpretation of results, but it would suggest that what went out was the same. I mean, an error calculation which only considered errors in the individual labs and there was a consistent result would suggest that they received the same thing. It would certainly tell you nothing about errors that might or might not have occurred before they were sent out.

MR. HARMON: Professor Speed, in fact there are many other biological samples in this case that did not go through the June 13th and June 14th, let's call it, common mode, aren't there?

MR. NEUFELD: Objection, beyond the scope and he has no expertise.

THE COURT: Sustained.

MR. HARMON: Professor Speed, you don't know whether or not there are many other biological samples that did not have the same history of sample 48, 50 and 52 on June 13th and 14th, do you?

MR. NEUFELD: Objection.

THE COURT: Overruled.

PROF. SPEED: May I just say that I was here when this was presented.

MR. HARMON: Objection, that is nonresponsive, your Honor.

THE COURT: Sustained. Reask the question.

MR. HARMON: Professor Speed, you do not know whether or not there are many other biological samples that did not go through the evidence processing room on June 13th and June 14th, do you?

PROF. SPEED: No, not in detail, no.

MR. HARMON: Do you recollect anything about samples 303, 304 and 305?

PROF. SPEED: I know what they are. I don't have an immediate recollection of their history, processing history.

MR. HARMON: Okay. Well, let's give you People's 565 and if you would--

THE COURT: Do you have a photo? It is hard to read from the monitor. Do you have an additional photocopy for Professor Speed?

MR. HARMON: I think so.

(Brief pause.)

THE COURT: Let me see if I can get you actually a hard copy.

PROF. SPEED: Thanks.

(Brief pause.)

THE COURT: It would be quicker if we just took that and photocopied. Mrs. Robertson, could we have a photocopy of that real quick, please.

(Brief pause.)

MR. HARMON: Showing you a copy of exhibit 565, did you see that the other day with Dr. Gerdes?

PROF. SPEED: Yes, I did.

MR. HARMON: And in fact those samples, if the dates are correct, have a totally different history than samples 48, 50 and 52, do they not?

PROF. SPEED: They certainly do.

MR. HARMON: And if they have a different history, then they share no common mode with 48, 50 and 52, do they?

PROF. SPEED: With those samples, certainly, it would appear not, yeah.

MR. HARMON: And would it be helpful in assessing whether a common mode failure occurred in trying to track the history of specific sample in this case?

PROF. SPEED: Yeah, I certainly believe so.

MR. HARMON: You didn't do that?

PROF. SPEED: I wasn't doing any analyses, as you know, of specific situations in this case.

MR. HARMON: Sure.

PROF. SPEED: I was speaking in general.

MR. HARMON: And did you say yesterday that Professor Weir rejects the notion of error rate?

PROF. SPEED: I believe I said yes, to a quote from his testimony.

MR. HARMON: Excuse me?

PROF. SPEED: I believe I said yes to a quote from his testimony which used that phrase.

MR. HARMON: Okay. And that is in fact part of the testimony that he presented, is it not?

PROF. SPEED: That is my recollection.

MR. HARMON: And is this one of the reasons you didn't want to talk to him on the phone, because you didn't want to discuss this with him?

PROF. SPEED: Well, as I--

MR. NEUFELD: Objection, your Honor, argumentative.

THE COURT: Overruled.

PROF. SPEED: Well, I really didn't want to enter into discussions about things on which I was about to testify where I would be--I don't really have much to add to what I said before except that I'm repeating myself. Publicly disagreeing with his point of view makes me feel slightly uncomfortable. I would rather have done it in an informal interchange well in advance of this situation and suddenly a few days before I'm about to start up and testify it is not a situation I relished. And I took your statement that it wasn't necessary that I do this at its face value and declined.

MR. HARMON: Well, why didn't you do it months ago, then?

PROF. SPEED: Well, you know, we have busy lives. I've been in Australia a bit. I've had a very busy semester and I don't know where Bruce has been other than here, but we haven't been having regular informal exchanges on these matters since the trial began. And, well, it doesn't seem to me too surprising, but perhaps we should have.

MR. HARMON: In retrospect you think maybe you should have?

PROF. SPEED: I'm really saying perhaps some other people feel we should have.

MR. HARMON: Okay. Now, in fact, if one were to--did you cull that out of his testimony yourself or did somebody present that snippet of his testimony to you to comment on?

PROF. SPEED: I have read the testimony and obviously I was very interested in Bruce's views on something that I was testifying about. It wasn't my suggestion that we actually state it, though. It was something that I preferred to do, rather than have it done some other way.

MR. HARMON: Do you mean to imply that Professor Weir does not recognize the possibility of error?

PROF. SPEED: I didn't mean to imply that.

MR. HARMON: Do you mean to imply that he rejects the notion that one might consider laboratory error rate?

PROF. SPEED: It is my impression that Dr. Weir does not accord laboratory error rate the importance that I do and that seemed a fairly clear statement of it, and I haven't actually seen him write anything that is fundamentally contradictory to that statement, so that seemed to be his view.

MR. HARMON: So you disagree with him on the significance that should be accorded to a laboratory error rate? Is that what you have just said?

PROF. SPEED: Oh, very much so.

MR. HARMON: And know that there could be a laboratory error?

PROF. SPEED: He has not said specifically that laboratory errors are impossible, yet he has, to my knowledge, never said they should play a role in the statistics of assessing the chance of incorrectly concluding somebody is the source of a DNA sample.

MR. HARMON: Okay. I would like you to actually look at the broader--and I would like to show you 37--I'm sorry, pages 33733 and 33734 of Professor Weir's testimony.

MR. NEUFELD: Do you have a copy for me, please?

(Brief pause.)

MR. HARMON: Okay. Could I have that back?

PROF. SPEED: (Witness complies.)

MR. HARMON: Does that help refresh your recollection about the full passage that Professor Weir made those statements in?

PROF. SPEED: Yes, but I certainly would appreciate a copy if you want to question me more about it.

MR. HARMON: I wish I had a Xerox machine here and I will give you one.

THE COURT: Well, counsel, I will tell you what--

MR. HARMON: Okay.

THE COURT: Let's take a recess. All right. Ladies and gentlemen, we are going to take our mid-morning recess. Please remember all my admonitions to you. Dr. Speed, you may step down. You are ordered to return in fifteen minutes. All right. We will take 15.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Anything we need to take up before we conclude with Dr. Speed?

THE COURT: All right. Let's bring out the jury, please.

MR. COCHRAN: Your Honor, I spoke with the bailiff and they said that was agreeable with them.

THE COURT: All right. So ordered. 1:30.

MR. COCHRAN: Thank you.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Dr. Speed, would you resume the witness stabbed, please. All right. The record should reflect that we have been rejoined by all the members of our jury panel. Dr. Terence Speed is again on the witness stand undergoing cross-examination by Mr. Harmon. And Mr. Harmon, you may proceed.

MR. HARMON: Thank you, your Honor. Your Honor, may we mark the two pages of Professor Weir's testimony that I had shown to Professor Speed?

THE COURT: That would be 578.

MR. HARMON: 78, yes, your Honor.

THE COURT: 578.

(Peo's 578 for id = 2-page document)

MR. HARMON: Professor Speed, I want to come back to where we left off and I have blocked out a couple of the pertinent passages that you referred to yesterday. You had a chance to read that before the break?

PROF. SPEED: Yes.

MR. HARMON: Now, isn't it true that Professor Weir, at the conclusion of the series of questions and answers, his final statement on the subject of laboratory error rate, with respect--with regard to the frequency estimates that he presented was: "I reject the notion that it," the laboratory error rate, "Should be incorporated"?

PROF. SPEED: That's correct.

MR. HARMON: Is that correct?

PROF. SPEED: That is what it says.

MR. HARMON: And you understand from having read Professor Weir's testimony, that the only statistics that he presented in his testimony were the population frequency estimates for the biological matches in this case?

PROF. SPEED: That's correct.

MR. HARMON: Is that true? And you don't take issue with Professor Weir's statement that he rejects the notion that laboratory error rate and the population frequencies should be incorporated, do you?

MR. NEUFELD: Objection. That is not the testimony and there is no--

THE COURT: Overruled. Overruled.

MR. NEUFELD: Objection, assumes facts not in evidence.

THE COURT: Overruled.

PROF. SPEED: Could you restate the question, please?

MR. HARMON: Sure. Professor Weir, in the end of that series of questions and answers stated, did he not: "I reject the notion that it should be incorporated"?

PROF. SPEED: Yes.

MR. HARMON: And from having read his testimony you know that he--that he was referring to the "It" was the laboratory error rate?

PROF. SPEED: Yes.

MR. HARMON: Okay. And the--what it should be incorporated or should not be incorporated with was the population frequency estimates, which is the only estimate that he presented? That is what you understood that answer to mean, did you not?

PROF. SPEED: Yes.

MR. HARMON: Yesterday one of the slides that we saw was a quote from the national research council on page 88. Do you recall?

PROF. SPEED: Yes.

MR. HARMON: And that quote was: "Coincidental identity and laboratory error are different phenomena so the two cannot and should not be combined in a single estimate; however, both should be considered." Do you recall that being up on the screen?

PROF. SPEED: I do indeed.

MR. HARMON: You endorse that statement yesterday from page 88 of the NRC report?

PROF. SPEED: I still do.

MR. HARMON: And you agree with Professor Weir's statement that it should be incorporated, the laboratory error rate should be incorporated with the population frequency estimate; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: And the reality is Professor Weir didn't agree that you could quantify laboratory error rate. That is what he discussed in that segment, didn't he?

MR. NEUFELD: Objection, assumes--that is not the testimony.

THE COURT: Overruled.

PROF. SPEED: May I read the sentence that we are talking about? He says: "You are asking me in essence to quantify something I don't think exists, so I reject the notion of an error rate."

MR. HARMON: "I reject the notion that it should be incorporated"?

PROF. SPEED: Well, I'm sorry, he rejects the notion it should be incorporated, but the "It" that we are talking about he has just previously said doesn't exist. That is what I thought--that is the quote that I was agreeing to yesterday. Incorporation of something that doesn't exist seems a moot point. He is stating very clearly here, as far as I read it, you are asking me in essence to quantify something I don't think exists. The "Something" in question there is error rates, so "I reject the notion of error rate." I don't see how that contradicts what I was saying yesterday. I didn't go on to comment on the quote that he rejects the notion that the "It" that he has just said doesn't exist should be incorporated, but I think he said very clearly that he doesn't think error rate exists. That is my reading of this document.

MR. HARMON: And you read his entire testimony?

PROF. SPEED: I do, yes.

MR. HARMON: And he did not acknowledge that it is possible to make errors in DNA testing? Is that your testimony?

PROF. SPEED: No, he--

MR. HARMON: I'm sorry.

PROF. SPEED: That is the curious thing. He acknowledges that errors are possible, but here, as we have just read, he rejects the notion of an error rate. He says it doesn't exist so it can't be quantified. To me that is a very paradoxical point of view.

MR. HARMON: Well, you haven't made any attempts to quantify it yourself independent of his statement, have you?

PROF. SPEED: I have spoken--the answer is no to that, if I may elaborate.

MR. HARMON: Well, it is?

PROF. SPEED: I have spoken to the--

MR. HARMON: Objection. It is nonresponsive, your Honor.

THE COURT: Ask another question.

MR. HARMON: Now, yesterday at the very close of your direct examination Mr. Neufeld posed to you the dilemma when one has a coincidental match where the estimate is one in billions. Do you recall that at the very close of your testimony yesterday?

PROF. SPEED: Well, I think--I know roughly what you are talking about, but I don't think you have stated it very precisely.

MR. HARMON: Okay. Well, I will do my best. And that furthermore, that there could be a match by mistake. Do you recall that phrase that you used, "A match by mistake"?

PROF. SPEED: Yes.

MR. HARMON: And the numbers that you refer to were 1 in 50 to 1 in 200. Do you recall that series of questions?

PROF. SPEED: I do. I do.

MR. HARMON: And that is the very point that the NRC addresses on page 88, the quote that I just read to you about not combining laboratory error rate and chance of a match. Do you recall that?

PROF. SPEED: Well, I recall you reading it, yes.

MR. HARMON: And that is what was up on the screen yesterday?

PROF. SPEED: That is what was up on the screen.

MR. HARMON: How many biological samples were tested in this case?

PROF. SPEED: I really--I really don't know the answer to that, but I would say in the range 50 to a hundred, but I'm just guessing, so perhaps I shouldn't even bother.

MR. NEUFELD: Objection. I move to strike since he said he was guessing.

THE COURT: Overruled. The jury can put that into appropriate context.

MR. NEUFELD: Okay.

MR. HARMON: Let me give you a definition so that we can go a little bit further with this question. Let's define a sample as any biological sample which undergoes the DNA testing process, okay?

PROF. SPEED: Yes.

MR. HARMON: Let's assume just for a hypothetical, since I don't want you to guess about how many, that there have been two run samples analyzed in this case, according to the definition I just gave you. Okay?

PROF. SPEED: Yes.

MR. HARMON: If those numbers that you threw out yesterday, 1 in 50 to 1 in 200 were real laboratory case work, laboratory error rate--are you with me so far?

PROF. SPEED: I am.

MR. HARMON: --what that means is that the chances--or that if those estimates are correct that 196 to 199 of the results that were--that might have been presented, if 200 samples were tested, were in fact the correct answers, doesn't it? Isn't that what it means?

PROF. SPEED: That is one way of interpreting it, yes. I'm not sure--

MR. HARMON: That is a correct way to interpret it?

PROF. SPEED: Well, error rate is a rather vague term. To address the issue you are talking about one has to split it up into false positives and false negatives and I think in terms of the sample you are referring to, not just the number of samples, but during the testing process the number of opportunities for making a false positive, the number of opportunities for making a false negative, and then assess the expected number of each of those kinds. That would be assuming you had an estimate of the rate. I don't think it is enough just to count samples.

MR. HARMON: Okay. Well, those are your numbers 1 in 50 to 1 in 200?

PROF. SPEED: I mention those as the sort of numbers one sees coming from blind external proficiency tests in related areas, for example, the bone marrow program where they do conduct these sort of tests and they get results of that order.

MR. HARMON: Okay. So one correct way to interpret the numbers that you threw out yesterday, 1 in 50 to 1 in 200, if 200 samples were tested, as I have defined samples, would be that 196 to 199 of them were the correct answers; isn't that true?

PROF. SPEED: Well, in my last answer I think I just said I think it is actually important in this context to split--

MR. HARMON: Objection, your Honor. That is nonresponsive.

PROF. SPEED: The answer is it is not true then.

MR. HARMON: It is not true?

PROF. SPEED: No.

MR. HARMON: Yesterday you said that at the end of that series of questions that of the two, the coincidental match of one in billions and the match by mistake of 1 in 50 to 1 in 200 you said matched, the match by mistake plays a more important role. Do you recall giving that answer at the very end of your direct examination?

PROF. SPEED: I do.

MR. HARMON: And when you said that that plays a more important role, weren't you violating the very caution that the NRC prescribed in 1992 when they said: "Coincidental identity and laboratory error are different phenomena so the two cannot and should not be combined in a single estimate; however, both should be considered"? Weren't you violating that?

PROF. SPEED: I don't see how. I was making a statement about the relative magnitude of the components. I wasn't combining them and I was considering both.

MR. HARMON: Professor Speed, you have not criticized any of the frequency estimates which have been presented to this jury in this case, have you?

MR. NEUFELD: Objection, argumentative and beyond the scope.

THE COURT: Sustained. Beyond the scope.

MR. HARMON: Professor Speed, have you criticized any of the frequency estimates which have been presented in this case?

MR. NEUFELD: Objection, beyond the scope.

THE COURT: Sustained.

MR. HARMON: Professor Speed, you do not mean by any of your discussions about laboratory error and the match by mistake plays a more important role, that if the jury decides that there was not a mistake made in any of the testing in this case that the population frequencies are incorrect?

PROF. SPEED: I haven't previously said that, but if you asked me do I believe the population frequencies, the answer is no.

MR. HARMON: You have not criticized in your direct examination any of the population frequency estimates in this case, have you?

MR. NEUFELD: Objection, beyond the scope of the direct examination.

THE COURT: Sustained. Sustained.

MR. HARMON: You have simply alerted the jury to consider the possibility of certain errors which may have occurred in this case; isn't that true?

MR. NEUFELD: Objection, argumentative, the form of the question.

THE COURT: Overruled.

PROF. SPEED: I think the answer simply is inappropriate there. I spoke on one aspect. I have not approved or disapproved. At least I did not approve or disapprove of the frequencies in my direct examination. I didn't address them, so--

MR. HARMON: Some of the possible errors that might have occurred in this case you listed as the chance of a sample mix-up?

PROF. SPEED: Yes.

MR. HARMON: Do you remember that? You just generalize with errors in DNA testing. Do you recall that?

PROF. SPEED: Yes.

MR. HARMON: And then you describe generally errors in all stages of handling. Do you recall that?

PROF. SPEED: I do.

MR. HARMON: Now, you have relied on the evaluation and testimony of Dr. Gerdes in recognizing the possibility of sample handling cross-contamination in your case, haven't you?

PROF. SPEED: Not solely, no. I also relied on that flow chart that we had up there which I believe is a Prosecution flow chart which shows the possibilities of errors before the samples are split and sent to the separate labs. And I am just relying on my general experience that nobody can say with certainty no errors occurred in that initial phase.

MR. HARMON: You have not made any attempt to quantify the likelihood that any of those errors actually occurred in this case, have you?

PROF. SPEED: That is not my role. That is the role of external blind proficiency tests. I'm simply pointing out their possibility. And in fact I was saying there should be tests to quantify these error rates.

MR. HARMON: Professor Speed, I want to ask you, you yourself, are you saying you are not capable of quantifying the likelihood of errors having occurred in a case such as this, a complex case such as this?

MR. NEUFELD: Objection, asked and answered and the word "Complex."

THE COURT: Overruled.

PROF. SPEED: I am not able to on the basis of my knowledge at the moment in this specific context. I have said how I think they should. It is not possible to look at a single case and come up with error rates. They require--sorry to keep saying this--external blind proficiency tests.

MR. HARMON: And the weak part is your knowledge at the moment in deciding how to approach this problem, isn't it?

PROF. SPEED: Well, "Weak" in what sense?

MR. HARMON: It is deficient?

PROF. SPEED: I'm not attempting to produce figures.

MR. HARMON: You have not attempted to produce figures?

PROF. SPEED: I have not attempted to produce figures.

MR. HARMON: In fact, nothing you have said constitutes statistical evidence that any of those possible errors actually occurred; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: If the jury decides that none of these possible errors actually occurred, then the only statistical information which they have to evaluate the match evidence in this case is the frequency estimates produced by Dr. Weir; isn't that true?

MR. NEUFELD: Objection.

THE COURT: Sustained.

MR. HARMON: Professor Speed, would you be willing to allow the jury to decide whether any of these possible errors actually occurred?

MR. NEUFELD: Objection. Objection.

THE COURT: Sustained. Sustained.

MR. HARMON: Professor Speed, since you have not provided any statistical information about the possibility that any of these errors occurred, what information is left to this jury to decide the significance of the biological matches that have been presented in this case?

MR. NEUFELD: Objection. May we approach, your Honor?

THE COURT: Overruled.

PROF. SPEED: What I have spoken to is the way in which errors can be assessed with correct testing.

MR. HARMON: Objection, your Honor. That is nonresponsive.

THE COURT: It is. Answer the question, professor.

PROF. SPEED: I'm sorry, could you repeat the question?

MR. NEUFELD: I'm sorry. Were you sustaining the objection, your Honor, or overruling it?

THE COURT: No, I'm directing him to answer the question.

MR. NEUFELD: Thank you.

MR. HARMON: Professor Speed, since you have not provided any statistical information about the possibility that any of these errors occurred, what information is left to this jury to decide the significance of the biological matches that have been presented in this case?

PROF. SPEED: I thought I was starting to answer that, but I was speaking generally to the possibilities. I mentioned some figures that I know of in my experience as a statistician and in reading literature on error rates in similar biological context. I believe that is information that I've provided the jury. I don't understand why--

MR. HARMON: What about Dr. Weir's frequency estimates?

PROF. SPEED: Excuse me. What about them?

MR. HARMON: Well, is that left for the jury to decide since you have not presented any statistical evidence of cross-contamination or any of these errors?

MR. NEUFELD: Objection, argumentative and beyond his expertise.

THE COURT: Argumentative. Rephrase the question.

MR. HARMON: Do you mean by the generalizations that you have presented to this jury that the jury should not be free to consider the population frequency estimates that were presented by Dr. Weir?

PROF. SPEED: I'm not telling the jury what they should or should not consider. I was not speaking about population genetics frequencies and I have made no statement to date, except a very brief one earlier in this cross-examination, about those issues.

THE COURT: All right. Let's wind this up.

MR. HARMON: I'm trying to, your Honor.

MR. HARMON: If the jury decides that none of those possibilities--

THE COURT: Counsel, rephrase that. The jury gets to decide all issues of fact in this case. They understand that.

MR. HARMON: Since the jury gets to decide whether any possible errors occurred--

THE COURT: No. Let's start again.

MR. HARMON: Since you have presented no statistical evidence that demonstrates the likelihood that any errors which might have occurred actually occurred, the only estimates, statistical estimate which they have to evaluate the significance of the match evidence in this case is Professor Weir's population frequency estimate; isn't that true?

PROF. SPEED: I don't believe that is a correct description of my testimony. I believe, without actually giving numbers and saying these are error rates on the basis of certain sorts of tests, I have still given them statistical information.

MR. HARMON: Given them estimates?

PROF. SPEED: I have not given them numbers, but I believe my testimony has been informative.

MR. HARMON: Thank you. I have no further questions.

THE COURT: Mr. Neufeld.

REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Professor Speed, do you believe that providing Dr. Weir's frequencies without providing error rates in this case is misleading?

PROF. SPEED: That was my direct testimony.

MR. NEUFELD: Now, Mr. Harmon asked you a couple of questions about--about your position on assumptions. Do you recall that?

PROF. SPEED: I do.

MR. NEUFELD: Okay. And about certain things being mainstream and not being mainstream. Do you remember that?

PROF. SPEED: That's correct, yes.

MR. NEUFELD: Okay. Do you believe, sir, that your views on the necessity of relying on external blind proficiency tests to produce error rates for forensic DNA profiling is mainstream or minority position?

PROF. SPEED: I think in this situation I'm very much in the majority. I hardly know another statistician who is knowledgeable about statistics and DNA profiling who doesn't think that.

MR. NEUFELD: One moment.

MR. NEUFELD: Now, remember when Mr. Harmon put up a picture of the Bronco stains, item 303, 304 and 305? Would you turn that on again, please. I meant the flow chart.

PROF. SPEED: Yeah.

MR. NEUFELD: All right. And he was pointing out to you that these stains did not have the same common point of--common point of origin as did the Bronco--the Bundy blood drops. Do you recall that?

PROF. SPEED: I do.

MR. NEUFELD: Now, do you see, by the way, on this sheet, where it states that the bloodstains for 303, 304 and 305 were actually collected on August 26th, 1994?

PROF. SPEED: Yup, I see that.

MR. NEUFELD: Now, even though they may have no common mode of error with the Bundy drops, is it conceivable, from a statistical standpoint, that 303, 304 and 305 may have their own common mode of error?

MR. HARMON: Objection, calls for speculation, no foundation.

THE COURT: Sustained. And we are referring to People's exhibit 565.

MR. NEUFELD: Yes. Thank you, your Honor.

MR. NEUFELD: Well, it has been asserted in this case--let me ask you a hypothetical. Assume that there has been testimony that these stains had been in the car, in the Bronco, for two months prior to their collection and assume that during those two months there were numerous unauthorized persons entering the Bronco or had access to the Bronco.

MR. HARMON: Objection, no foundation, calls for speculation.

THE COURT: Overruled.

MR. NEUFELD: If an error happened during that two-month period, approximately two-month period, is that the kind of error which you described earlier as a common mode of error?

MR. HARMON: Objection, calls for speculation, no foundation, assumes facts not in evidence.

THE COURT: Overruled.

PROF. SPEED: It is stretching the definition somewhat, but it captures the essence, that it is something that is common to those samples before they received their separate analyses, which in this case I assume were consistent.

MR. NEUFELD: You mention you haven't quantified the error rate for forensic DNA profiling; is that correct?

PROF. SPEED: That is correct.

MR. NEUFELD: But have you made suggestions to the appropriate bodies on how that error rate could possibly be quantified?

PROF. SPEED: I have. I have written a letter to the national research council relating to the update or the second volume of this and of course I have simply echoed in a little more detail the sentiments in the first one.

MR. NEUFELD: Finally, the Prosecutor asked you whether or not you had called Dr. Weir before you testified today and you said you hadn't. And you mention that you had been consulting or working with using your expertise, your time and your effort to assist the Defense or to explain things to us, since September of 1994. Did Dr. Weir, prior to his taking the witness stand here, call you to discuss his positions?

PROF. SPEED: No, he didn't. I think we are both a little uncomfortable about being on opposite sides in this issue.

MR. NEUFELD: Nothing further. Thank you.

THE COURT: Mr. Harmon.

MR. HARMON: Just a few, your Honor.

RECROSS-EXAMINATION BY MR. HARMON

MR. HARMON: So you think Professor Weir misled this jury about not presenting error rates?

MR. NEUFELD: Objection as to his impression of someone else. Misleading.

THE COURT: Overruled.

PROF. SPEED: I--that quote that you gave me earlier, I disagree with it.

MR. HARMON: Objection. That is nonresponsive.

THE COURT: Overruled.

PROF. SPEED: You are asking me to say did a colleague mislead a jury and that sounds a rather strong sort of statement, but if I've got to answer yes or no, then the answer must be yes.

MR. HARMON: Didn't you just say that to Mr. Neufeld--did you hear the question he asked you about that?

MR. NEUFELD: Objection, asked and answered.

THE COURT: Overruled.

PROF. SPEED: Sorry.

MR. HARMON: Now, this is Mr. Neufeld, okay, and I would like to ask you if he asked you this question about five minutes ago, okay? "Professor Speed, do you believe that providing Dr. Weir's frequencies without providing error rates in this case is misleading?" Did you hear him ask you that?

PROF. SPEED: I did.

MR. HARMON: And did you say: "That was my direct testimony"?

PROF. SPEED: I did.

MR. HARMON: Did you mean that?

PROF. SPEED: I did.

MR. HARMON: He was misleading?

PROF. SPEED: All I can say is to say something is misleading is a more benign way than answering yes, this person misled the jury, which is what you asked me.

MR. HARMON: Okay.

PROF. SPEED: And I would--understandably I'm uncomfortable about having it phrased in that way.

MR. HARMON: Now, in fact this jury heard the laboratory error rates for each of the laboratories that were presented from the laboratories themselves; isn't that true?

MR. NEUFELD: Objection again to this jury and objection to his misstating the testimony.

THE COURT: Overruled. Overruled. Sit down.

PROF. SPEED: When I use the term "Error rate" I mean--

MR. HARMON: Objection. That is nonresponsive, your Honor.

THE COURT: No. He can answer the question. The form of that question allows this type of answer. Go ahead and answer the question, professor.

PROF. SPEED: I don't believe that the figures presented by the three bodies, if indeed all three did, are error rates in the appropriate statistical sense, because they were not evaluated on the basis of external blind proficiency tests. So my answer to that question is no, they did not present error rates to the jury. They may have presented figures to the jury, but I would not dignify those figures with the description error rates in the sense that I'm sitting here talking about this term.

MR. HARMON: And in the ten months that you have been retained on this case you have made absolutely no effort to calculate an error rate that would meet your satisfaction; isn't that true?

THE COURT: We've already covered that.

MR. HARMON: So you disagree with the form of the proficiency test results that they have presented to this jury, each of the laboratories?

PROF. SPEED: The answer is yes. The design of the study that goes into an estimate is fundamental to the meaning of that estimate.

MR. HARMON: Now, let's go back do 303, 304 and 305, if you will. Now, you had never seen or been interested in any of the information that is on that exhibit until I showed it to you today; isn't that true?

PROF. SPEED: That is not exactly true, no.

MR. HARMON: What is the truth about those items?

PROF. SPEED: The truth is a little vaguer. I have sort of patchy knowledge of quite a lot of this evidence, but I do not feel comfortable sitting here claiming to have a detailed and accurate knowledge. But it is just not true to say I have never been interested. I actually have a lot of this stuff just to sort of, as it were, general background so I know the context in which I'm thinking about these issues.

MR. HARMON: Now, you allowed, in response to Mr. Neufeld's questions, that there might be something in common with all three of those samples. Is that what you said?

PROF. SPEED: I believe so.

MR. HARMON: But you have no idea what it is, do you?

PROF. SPEED: No, I don't.

MR. HARMON: Do you remember what the results are on those three samples?

PROF. SPEED: Well, I don't remember them, no.

MR. HARMON: So you have no idea whether we--the possibility of this common mode failure actually existed with those three samples; isn't that true?

PROF. SPEED: In general--the answer is no, but that is a general situation. Usually you don't know if errors occurred unless it is in a test where the truth is known.

MR. HARMON: Now, one of Dr. Gerdes' contentions was that in the sample handling for the evidence that was collected at Bundy, they were exposed to--samples from Bundy were exposed to the Defendant's reference sample. Are you aware of that?

PROF. SPEED: I am--

MR. NEUFELD: Objection as to Dr. Gerdes' intentions.

MR. HARMON: Contentions.

MR. NEUFELD: Same objection.

THE COURT: Rephrase the question.

MR. HARMON: Sure.

THE COURT: Counsel, aren't we going a little broadly here?

MR. HARMON: I'm almost done, your Honor. It is within the scope. Yes, we are.

MR. HARMON: One of Dr. Gerdes' contentions is that the stains from Bundy had potential exposure to Mr. Simpson's reference sample during the sample handling. You were here for that, right?

PROF. SPEED: That's right, and I am aware of that.

MR. HARMON: Do you have any idea or information, in this general background information that you have, whether or not the same statement could be made about 303, 304, 305?

PROF. SPEED: No.

MR. HARMON: Not--not a whit of information?

PROF. SPEED: At this--sitting here, no, I believe I have some notes, but that is not relevant.

MR. HARMON: Okay. And the same question with regard to being exposed to Nicole Brown's reference sample, not an idea at all about whether or not those three samples were exposed to her reference sample during any of the processing?

PROF. SPEED: That's true.

MR. HARMON: And the same question with regard to Mr. Goldman's sample, you do not have any idea whether or not those three samples had any exposure to Mr. Goldman's reference sample; isn't that true?

PROF. SPEED: That is true.

MR. HARMON: Okay. Thanks.

MR. COCHRAN: May we approach, your Honor, one second?

THE COURT: No.

MR. COCHRAN: I'm sorry.

FURTHER REDIRECT EXAMINATION BY MR. NEUFELD

MR. NEUFELD: Mr. Harmon asked you whether or not your requirement that the error rates be based on external blind proficiency testing was an objection you had as to the form of the testing. Do you recall that?

PROF. SPEED: Could you state that again. An objection--

MR. NEUFELD: Okay. Do you remember whether--I don't mean in the legal sense, sir. I mean do you remember when Mr. Harmon was asking you a few minutes ago whether or not your opinion that external blind proficiency testing is a necessity is a precondition for presenting an appropriate error rate, whether he asked you was that simply, you know, your opinion. Do you remember that?

PROF. SPEED: I do remember that.

MR. NEUFELD: Okay. Is that also something which has been strongly recommended by the national research council?

PROF. SPEED: Certainly. It was in the quotes we read out.

MR. NEUFELD: Has both the necessity of external blind proficiency testing in error rates been strongly recommended by your colleagues in the statistics community?

PROF. SPEED: Yes.

MR. NEUFELD: Thank you.

MR. HARMON: Nothing further, your Honor.

MR. COCHRAN: May we approach, your Honor?

THE COURT: Yes. As to this witness?

MR. COCHRAN: Yes.

(The following proceedings were held at the bench:)

THE COURT: We are at the side bar. Mr. Cochran.

MR. COCHRAN: The reason I wanted to approach the bench, your Honor, just as an observer, one other time the Court had told me to sit down when I made an objection, and the Court later somehow apologized. In an exchange that I observed, Mr. Neufeld was doing what the Court has asked us to do, stand up, and the Court says "Sit down" as though you were unhappy with Mr. Neufeld. He wasn't doing anything. He stood there and then he sat down as you said that. Whenever I see that I think I should bring that to the Court's attention. The Court might want to clear that up. I don't think you were angry with Mr. Neufeld--

THE COURT: I think I'm impatient with both sides. This is a very simple issue and we have managed to spend a day and a half on a very simple issue.

MR. HARMON: You told me to sit down and I have forgiven you for it.

THE COURT: Well, thank you.

MR. COCHRAN: I wanted to bring it up. At that time I didn't think he did it. You may have been impatient.

THE COURT: I have told both of these counsel to sit down and I'm telling them now to sit down.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Dr. Speed, thank you very much, sir. You are excused.

PROF. SPEED: Thank you.

THE COURT: All right. I think we need to discuss our next witness, correct.

MR. COCHRAN: Yes, I think there may be some motions.

THE COURT: All right. Ladies and gentlemen, let me ask you to step back into the jury room for a few moments.

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. The record should reflect the jury has withdrawn from the courtroom. Two matters we need to take up. We need to take up the matter with the city attorney's office and the motion in limine regarding Dr. Mullis.

MR. COCHRAN: Yes. May I have just a second, your Honor?

THE COURT: And you indicated, counsel, that you wanted Dean Uelmen to be here for the Internal Affairs argument.

MR. COCHRAN: Yes.

THE COURT: I have not seen him.

MR. COCHRAN: Yes, your Honor. My understanding his plane was to be here at 10:10 and we are expecting him any moment. I had Mr. Douglas step out and check. Apparently he is not here yet. And if I can have just a second, I want to inquire about the motion in limine regarding Dr. Mullis.

MS. CLARK: Because Mr. Uelmen is not here yet, your Honor, we could take up the issue of Dr. Baden's discovery.

MR. COCHRAN: Let's see where we are on this.

THE COURT: Let's see where we are here.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: Your Honor, what I would propose to the Court is we need, as I indicated to the Court, to utilize the time over the lunch hour to make some decisions regarding order of witnesses. And what I would like to do now is to proceed with the argument regarding Dr. Baden and Mr. Kelberg and Mr. Shapiro. By that time I'm hopeful that Dean Uelmen will be here and we can have the city attorney here and then I would ask the Court to defer.

THE COURT: Here he is.

MR. COCHRAN: As we speak, yes.

THE COURT: Let me ask Mrs. Robertson to ask Mr. Walsh--he is on his way over.

MR. COCHRAN: We can proceed, if the Court wants to, with the Dr. Baden motion and we will be ready for Dean Uelmen and I will ask for a recess at that point, your Honor, as to the other--

THE COURT: That's fine. All right. Mr. Shapiro, are you going to handle the matter regarding Dr. Baden and Dr. Wolf?

MR. SHAPIRO: Yes, your Honor. Thank you.

THE COURT: Mr. Kelberg.

MR. KELBERG: Good morning, your Honor, and thank you for giving me a moment or two of your time. I was provided--our office was provided late yesterday evening under an August 8, 1995, cover letter, various notes of Dr. Baden, Dr. Wolf, Dr. Lee, and conspicuously absent from these notes is any note made by either Dr. Baden or Dr. Wolf during the time of Dr. Lakshmanan's testimony. And if the Court doesn't want to take my recollection, I'm sure we have videotape available, but my recollection is both doctors Baden and Wolf had yellow pads on which they were scribbling what appeared to me to be copious notes during the course of Dr. Lakshmanan's testimony, in particular his description of wounds and interpretation of wounds, et cetera, et cetera. This material has not been provided to us and there is no basis on which it becomes privileged. If these are their notes, they are their notes. There is no work product privilege that applies if the witness is to be called. And in fact in California, as the Court is well aware under Izazaga, the only work product privilege that applies is 2018(c) under the code of civil procedure, the absolute work product privilege of attorneys. There is nothing in Izazaga that prevents or allows to, in essence, hide those notes from us and really those are the crux. I'm assuming Dr. Baden is going to come in here and talk about forensic pathology. If he wants to walk in here and talk about stain analysis and DNA and so forth, where the notes that he has provided us may have some relevancy, we may be having an issue as to his expertise, but if he is coming in to talk about forensic pathology, there is almost nothing in his notes, other than a litany of what he saw on June 22nd at the Coroner's office--actually notes of Dr. Wolf during the course of their examination--there is nothing of course regarding findings, interpretations, what have you. Clearly under the lines case, 13 cal.3D 500, it is clear if he is going to be called, even if there were a work product privilege attached, it is waived by the concept of calling him. And as I said yesterday to the Court, I learned to try cases when trial by ambush and one-way discovery was the rule of the day, so I'm not going to stand here and tell this Court I'm not ready to go. I'm ready to go. I could be ready to go in thirty seconds if they wanted to put him on next, but in fairness, if we are going to have reciprocal discovery, if we are going to try and avoid these ambushes, if the Defense is not going to be able to hide this ruse from our evaluation in advance, then I must be down here and ask this Court to impose the will of the People of reciprocal discovery that they provide these materials to us. And again, I know of no legal basis, not attorney/client--because there is no confidential communication between the client and Dr. Baden or Dr. Wolf. This is Dr. Baden or Dr. Wolf taking notes during Dr. Lakshmanan's testimony. So it is all on work product of which there is no work product privilege under Izazaga, and even if there were, under lines it is waived by their decision to call him. So I ask for those notes, any other notes that may exist, and I also ask to preview any boards or charts or diagrams that the Defense intends to use during the course of Dr. Baden and/or Wolf's testimony.

THE COURT: Other than those that aren't already in evidence?

MR. KELBERG: Correct. Of course. Those are my requests, your Honor.

THE COURT: All right. Mr. Shapiro.

MR. SHAPIRO: Good morning, your Honor, and thank you. Your Honor, I think Mr. Kelberg is well aware that on June the 14th of 1994 I retained the services of Dr. Baden, Dr. Wolf and Dr. Lee as a consultant. And upon that retention I notified the Los Angeles Police Department that in my opinion these were the leading experts in the country in their specific fields and offered their services to both the Coroner and to the crime lab at the Los Angeles Police Department to aid them in any way that could be of benefit in trying to focus on who the real killers were in this case. That request was turned down. Dr. Baden has been consulting with me on almost a daily basis since this case began and is familiar with almost each and every aspect of the case, including evidence collection, including forensic pathology, obviously. He was the person who found the errors at the Coroner's office that resulted in a report being generated of sixteen mistakes and of the contusion to the brain that was missed by the Coroner. He, like Dr. Lakshmanan, who in the most tedious testimony in this case over eight days is not a person who makes copious notes of everything he does in an overall consultation. He is a conduit between the pathology, Mr. Simpson and myself to educate me so I can hopefully present the points of view to the jury regarding the pathology in this case, the manner and cause of death, and the circumstances surrounding that death. As the Court will note, Dr. Lakshmanan testified he spent 200 hours in preparation, yet he had not a single note, so I don't find it surprising that Mr. Kelberg would be unaware--I find it surprising that Mr. Kelberg now would expect that Dr. Baden has substantial notes. Regarding whether or not the notes that were taken during the examination are discoverable, I would suggest to your Honor that since those were done at my direction and since both doctors were here at my request and since they were aiding me in my presentation of cross-examination of Dr. Lakshmanan, that they are clearly privileged and are not discoverable. And they are part of the work product that I generated along with the doctors recording this case and purely for one purpose, for the cross-examination of Dr. Lakshmanan, so those are not discoverable.

We have had two requests for reports and it is my practice with consultants not to ask for reports. Since they have been working on case for the last thirteen or fourteen months, it would be impossible to generate anything short of a book to be a comprehensive report of all the errors, mistakes and problems that they see with this case, so there are no such reports. As far as the notes that have been taken, I have asked Mr. Blasier to review all the materials. He has done that. He has furnished that to Mr. Kelberg. Mr. Kelberg has been very candid. He is ready to proceed; so are we. They have everything that they are entitled to.

THE COURT: Mr. Kelberg.

MR. KELBERG: Your Honor, that is, I hate to say this, a very disingenuous response. Is Mr. Shapiro saying that there are not notes that Dr. Baden and Dr. Wolf wrote that are in possession of the Defense and not provided to us? As I understand it, those notes do exist. Now they are claiming work product. Well, they didn't claim work product on the notes they sent across. And it doesn't matter whether Mr. Shapiro is the one that requested their presence here or not, 2018(c) is the only work product that applies in California. And of course Mr. Shapiro can't cite any conflicts with the Supreme Court decision in lines, 13 cal.3D 500, which even in a work product situation, which is what the old policy was when we had one-way discovery--I know the Court is well aware of the what is, 13 cal.3D--that by retaining the expert, by allowing the expert to do work on the case there was a work product privilege that applied. Lines says you put that witness on the stand, you waive the work product privilege as well as attorney/client because there the psychiatrist was evaluating the Defendant, so there was confidential communication. The Defense cannot stand here and say we are not entitled to those notes. I don't care what reason Mr. Shapiro had for having doctors Wolf and Baden here. The point is if they made notes we are entitled to them. And by the way, Mr. Shapiro conveniently does forget that Dr. Lakshmanan provided detailed reports and exhibits 350 and 351 identifying every injury that was observed, trying to identify every error that was found in his review of the autopsies. Apparently doctors Baden and Wolf were unable to do that, and the real reason, as everybody knows, is they want to ambush us and everybody knows. It is not a secret. That is the way the game is played. Is this going to be a game or is this going to be a search for the truth? If Mr. Shapiro can give this Court a citation to a controlling case from the California Supreme Court that says we are not entitled to it, let's hear it, let's look at the case, let's see if it in fact says what he says it will say. Let's see where lines is overruled. It is not. I submit to the Court this is an area I have done quite a bit of review in. I would like to think I am pretty up-to-date in the subject, and I think the Court will find there is no case which says lines no longer applies, in spite of prop 115 and reciprocal discovery. We are entitled to those notes. This should not be a trial by ambush. Whether I have the skill to cross-examine him or not right this moment without those notes is not the issue. What is the issue is the will of the People to see that this is a search for the truth and to get from the Defense the notes that they have. I will submit it, your Honor.

THE COURT: All right. Thank you, counsel. All right. I'm going to direct the Defense to turn over Dr. Baden and Dr. Wolf's notes, if they are to be called as witnesses. All right.

MR. SHAPIRO: Turned over when, your Honor?

THE COURT: Tomorrow?

MR. KELBERG: Your Honor, I understand Dr. Baden is going to be possibly on the stand tomorrow morning.

MR. COCHRAN: Possibly.

MR. SHAPIRO: Possibly.

THE COURT: No later than tomorrow.

MR. SHAPIRO: Thank you.

MR. KELBERG: Will I have an opportunity at least to thumb through them?

THE COURT: Yes, you will.

MR. KELBERG: Thank you, your Honor.

THE COURT: You are welcome. All right. Let's see. Mr. Walsh hasn't made it yet. How about the Mullis issue?

MR. COCHRAN: Your Honor, on that issue I think we indicated to the Court we wanted to take the time over the lunch hour to have some separate discussions.

THE COURT: All right. Then we will await Mr. Walsh to arrive with regard to the IAD issues.

MR. COCHRAN: We will proceed with that.

THE COURT: All right. Let's see. One other matter. Let me see Miss Clark and Mr. Cochran.

MR. KELBERG: Your Honor, I'm sorry, before the Court--

THE COURT: Yes?

MR. KELBERG: I also requested to see any exhibits that were used that were not already marked. Does the Court order include that opportunity?

THE COURT: It does. That will be the first thing tomorrow morning.

MR. KELBERG: Thank you, your Honor.

(The following proceedings were held at the bench:)

(Discussion held off the record.)

THE COURT: I asked you over here. We are over at the side bar. Mr. Cochran, I don't know if you are aware of this, my wife's continuing career progress, which she is now the Captain III of Internal Affairs. She was the Captain II, the chief investigator, now she is the Captain III.

MR. COCHRAN: I knew she was in charge of Internal Affairs. I had heard that, you know. That is all I know. She is a Captain III in charge of Internal Affairs?

THE COURT: Yes.

MR. COCHRAN: And I have not thought about that in this mix.

THE COURT: Yeah, because we had sort of--this water had sort of passed under the bridge long gone away, so we are coming back with Commander J.I. Davis who you know.

MR. COCHRAN: Yes.

THE COURT: He is the commander who is over that operations group and he is the one who responded to the subpoena duces tecum and he is the--the commanding officer of the group, Internal Affairs group. But just to let you know that that exists and you should advise your client of that.

MR. COCHRAN: I should and we are going to be--you let us have the time over the lunch hour.

THE COURT: That is one of the things you wanted to discuss with him.

MR. COCHRAN: If it comes down to any kind of records or subpoena stuff, I will talk to him, we would ask J.I. We wouldn't try to subpoena your wife.

THE COURT: One of the things that I might suggest, if in your discussions is you might want to have some other Judge rule on this particular issue.

MR. COCHRAN: You may be right, just out of an abundance of precaution because I don't know, if there is ever an appeal, we could be criticized if we didn't, and you may be right. May I have a minute to talk to Jerry about this?

MS. CLARK: On which?

THE COURT: On the motion regarding Internal Affairs and whether or not they have to cough up certain records.

MR. COCHRAN: I would like to talk to Jerry Uelmen about that. If we did, how soon would we be able to get somebody?

THE COURT: That is a good question. I would have to farm it out to Department 100. That is something I should have thought about before. But we've had about--every time I come to court there is three completely new issues.

MR. COCHRAN: Yes. Thank you for sharing that with us. We would like five minutes--Walsh isn't here yet.

THE COURT: Yes, he is.

MR. COCHRAN: Give me five, ten minutes with him and we will be ready. I will come back and give you a report as soon as possible on that.

THE COURT: My recommendation is that we ship it to somebody else.

MR. COCHRAN: I can't quarrel with that. I don't think I can quarrel with that. How do you want to phrase it?

THE COURT: Let me invite Mr. Walsh up, because it may be a scheduling issue.

(The following proceedings were held in open court:)

THE COURT: Mr. Walsh, would you join us, please.

(The following proceedings were held at the bench:)

MR. COCHRAN: Can I get Jerry up here?

THE COURT: Sure.

(Brief pause.)

THE COURT: Let me wait for Mr. Uelmen. Gentlemen, my apologies to you beforehand for not having contemplated this issue deeply. Sometimes arguments over SDT's sort of go on the back burner in light of what goes on in this case on a daily basis. I was just advising Mr. Cochran, reminding him again that my wife is the--was the Captain II Chief Investigator of Internal Affairs and is now the Captain III, the commanding officer of that particular division. And I think it would perhaps be more appropriate if we sent this hearing on whether or not Internal Affairs has to produce certain records, perhaps should be heard by a different Judge, the issue of the--of the validity of the SDT or the compliance with the evidence code sections. I would feel more comfortable if we have another Judge do this, and I apologize to you right now for not having contemplated this earlier, but I think--scheduling wise, because I know, Dean Uelmen, you have Stanford and riding the shuttle is not the greatest thing in the world. And Mr. Walsh, I know you have other things to do besides involve yourself with this.

MR. WALSH: Right.

THE COURT: I know that time is of the essence. We need to get this resolved pretty quickly, but I do think that it ought to be referred.

MR. UELMEN: Is another Judge available?

THE COURT: You know, having just contemplated this, I was thinking about Tracie Savage and Mark Fuhrman and a few other things that I have to worry about this week.

MR. WALSH: I don't have any problem with what you are suggesting, but I would just like to note for the record that Internal Affairs has taken pains to make sure that Captain York does not become part of any investigation touching on this case. But notwithstanding that, I respect your sensibilities.

THE COURT: Notwithstanding that, it still might have the appearance, so I would prefer we have another Judge take over.

MR. COCHRAN: We agree and I wanted Jerry to get a chance to respond.

MR. UELMEN: Our position of course is that this issue is related to the Tracie Savage question and should be resolved before your Honor rules on the Tracie Savage issue.

THE COURT: Okay. That is why I said time is of the essence far as getting this done.

MR. COCHRAN: Can we check?

THE COURT: Why don't we do this. Why don't we take our recess at this point, since it is a quarter to noon right now. Let me check with the supervising Judge and see if there is anybody available to hear this. Mr. Walsh, you told me you had a problem this afternoon?

MR. WALSH: No, I have no problem with this afternoon.

THE COURT: All right. Let me see if I can find somebody clear to hear this.

MR. COCHRAN: All right. We are going to be meeting on the other issue. There may or may not be a 402 motion regarding Dr. Mullis.

MS. CLARK: Yes.

MR. COCHRAN: We will make a decision regarding that. We could either leave early today, or not having any witnesses today, or have him on. I think that is kind of where we are at this point.

THE COURT: Okay.

MR. COCHRAN: We will focus our attention on this motion. The Court could then have an opportunity to get the result of this motion and perhaps work on this Savage motion, because we can't call certain witness--you know, we want Gascon, too. You got the message on that?

MS. CLARK: (Nods head up and down.)

MR. COCHRAN: We don't have to serve him, I presume, do we?

MS. CLARK: You want Gascon?

MR. COCHRAN: He is on our witness list.

MS. CLARK: For what?

MR. COCHRAN: You will find out. We want to give you notice we want him with Savage, Bosco, Gascon.

MS. CLARK: Assuming it is deemed admissible.

MR. COCHRAN: Yes, yes.

MS. CLARK: There would be an independent 402 on him.

MR. COCHRAN: That is fine. I'm just telling you now.

MS. CLARK: Well, that is going to be after--that is going--

THE COURT: Well, let's resolve this first.

MR. COCHRAN: I just want to give you notice.

THE COURT: How about if I direct all counsel then to return at 1:30, and in the meantime I will go talk with the supervising Judge.

MR. WALSH: I will come back also.

MR. COCHRAN: We are going to be here and we can get word to you if there is a court.

THE COURT: Come back at 1:30.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. We have just had a side bar conference regarding schedule of the various motions that we have to take up. And counsel, I'm going to suggest that we stand in recess at this time until 1:30 and then we will start taking up the motions at that time. All right.

MR. KELBERG: Excuse me, your Honor. Mr. Shapiro I thought wanted to put something on the record, he asked me to stay, regarding photographs.

MR. SHAPIRO: I think I can work that out with Mr. Kelberg, your Honor. I didn't want to burden the Court.

THE COURT: All right.

MR. KELBERG: Great.

MR. SHAPIRO: These are photographs apparently taken June 16th, 1994, in Chicago that we have not received yesterday except in Xerox form.

MR. KELBERG: They have the Xerox. I will request that a set be prepared.

THE COURT: All right. We will stand in recess until 1:30. Thank you, counsel.

(At 11:44 A.M. the noon recess was taken until 1:30 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 8, 1995 1:30 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, one of the motions that we have on calendar--actually we have two for today. We have the Stockdale motion and the IAD motion. And previously, when this matter was submitted to the Court, I advised counsel and Mr. Simpson at the time that my wife was a captain with the Los Angeles Police Department at the time, and I recollect that she was in Internal Affairs when this case was assigned to me back in July of last year. At that time, she was the Captain II there and the chief investigator. When this matter of leaks came up, the Los Angeles Police Department conducted its investigation, and essentially Captain York was not involved in that investigation. This issue has arisen again, and since that time, my wife has been promoted to the Captain III of Internal Affairs. And I feel that since this particular motion involves files that are there, investigation that was conducted by the Internal Affairs Division of the Los Angeles Police Department, I think it's more appropriate that another Judge hear this motion. And I am comfortable with the fact that my wife has had no involvement in that investigation from start to finish and I don't feel that there is any actual conflict involved. However, I think the appearance is such that I would feel more comfortable and I think the parties would feel more comfortable if another magistrate heard this particular motion. And I discussed this informally with counsel off the record, advised them of my inclination that I was going to transfer this to another Judge, to Department 100 to the supervising Judge, Judge Bascue, for his assignment so that this can be heard by a magistrate who has no spousal connection to any of the parties involved here.

However, I've also informally discussed with the parties that in the event that the magistrate hearing the motion does grant an in camera hearing, that because this Court is more familiar with the issues involved, that this Court would then, with the agreement of the parties and stipulation of the Defendant, agree to do the in camera hearing if that comes to pass. Is that your understanding, Mr. Darden?

MR. DARDEN: That is, your Honor, and that's acceptable.

THE COURT: All right. Is that your understanding, Mr. Walsh?

MR. WALSH: Certainly, your Honor.

THE COURT: Is that your understanding, Mr. Cochran?

MR. COCHRAN: Yes, it is, your Honor, and I've conferred with Mr. Simpson regarding that.

THE COURT: All right. Is this arrangement agreeable to you, Mr. Simpson?

THE DEFENDANT: Yes, it is.

THE COURT: All right.

MR. COCHRAN: And I should point out, Mr. Simpson does want to be present at that hearing when it's argued, your Honor.

THE COURT: Yes.

MR. COCHRAN: And I have suggested to the Court, if another magistrate wanted to come here, that would be fine. But we'll go wherever.

THE COURT: Well, let me ask. You know, it's a matter of judicial protocol. I will invite Department 100 to make the assignment. Is it agreeable with you that I contact Judge Bascue and ask him to make the assignment directly?

MR. COCHRAN: Yes. And then we'll--and further, I'll make a specific request, your Honor, just from the standpoint of logistics and we're set up here, we would like Mr. Simpson to be present for this hearing, and I would--you have no concerns about protocol if the new magistrate would come here.

THE COURT: Just as long as they don't change all the adjustments on my chair.

MR. COCHRAN: On your chair or move your pens or your--I understand, your Honor. If you can work those things out, we'll be more than happy to remain here and wait for the other magistrate. And we could then, of course, in the course of argument explain that if the magistrate believes that there should be an in camera proceeding, we would stipulate, both sides, that your Honor would conduct that because of your familiarity with the facts.

THE COURT: All right. Then I'll take a brief recess. Then I'll contact Judge Bascue, ask him if he will assign the Judge directly to hear the matter here. All right. All right. We'll take 5 minutes.

(Recess.)

THE COURT: All right. Back on the record in the Simpson matter. Counsel, I've consulted with Judge Bascue in Department 100. He has agreed that for logistical reasons, that he will assign the matter to Department 123, which would be heard in Department 103 forthwith. So as soon as Judge Reid arrives, the matter will be heard. So I will excuse myself, and Judge Reid will take the bench to hear the motion. All right. We'll stand in recess until Judge Reid arrives.

MR. DARDEN: Judge, can we approach?

THE COURT: Sure.

(A conference was held at the bench, not reported.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 8, 1995 1:55 P.M.

Department no. 103 Hon. John Reid, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Good afternoon.

MR. COCHRAN: Good afternoon.

MR. DARDEN: Good afternoon.

THE COURT: Needless to say, I am not at all familiar with the proceedings which I will now preside over, but for I have read and considered a Defendant's motion for statements given a witness in the course of an Internal Affairs investigation filed August 1st and a motion by the city attorney on behalf of the Los Angeles Police Department to quash Defendant's motion--strike that--to quash the Defendant's subpoena duces tecum, which I have not seen. So other than that, I have read and considered nothing. Who on behalf of Mr. Simpson will be addressing the issues before this Judge?

MR. UELMEN: Gerald Uelmen, your Honor.

THE COURT: All right. Thank you, Mr. Uelmen. And on behalf of the police department?

MR. WALSH: Arthur Walsh, assistant city attorney, your Honor. Would you like me to give the Court a copy of the subpoena duces tecum at this point?

THE COURT: That would be helpful. And as that's being given to me, Mr. Uelmen, in your motion filed August the 1st, it appears not to be in response to the SDT, but rather a request for discovery?

MR. UELMEN: Yes, your Honor. I believe the subpoena has actually been mooted. We believe we're entitled to this in the course of discovery in this case and that a subpoena is not actually necessary since what we are proceeding with is not a pitchess motion, and I'll explain that at greater length, your Honor.

THE COURT: No. I agree with you. That was my interpretation.

MR. UELMEN: I think it's important at the outset that we get past any question of label. This is not a pitchess motion. We are not seeking the personnel records of any specified police officer to show previous citizen complaints against that officer. What we are seeking is an investigative report that was done in connection with this very case to investigate issues raised by this case, and we believe that when witnesses are going to be called in this case to testify about those same events, that we are entitled as a matter of course to the statements that they made in the course of that investigation. I think the closest analogy that we have seen previously in this case is the investigation that was conducted on behalf of the police commission by Detective Mulldorfer with respect to the events that took place at Viertel's garage with regard to the Bronco. Here we had a separate internal investigation by the police department in which Detective Mulldorfer went to the garage and interviewed a number of witnesses who became material witnesses in this very case with respect to the same events, with respect to the chain of custody of the Bronco automobile. And, of course, that report was at that time produced and made available and the previous statements that those witnesses had made to Detective Mulldorfer were then available to both sides to confront and cross-examine and examine these witnesses with respect to those same events. Here, it's really just a matter of fortuity that this investigation was assigned to Internal Affairs. And simply by the administrative machinery of putting Internal Affairs in charge of this investigation, that does not insulate it from any discovery in a criminal case. The privilege that's created by penal code section 832.5 with respect to personnel records is a qualified privilege for personnel records. It is not a qualified privilege for Internal Affairs investigations. And if those Internal Affairs investigations relate directly to the ongoing disputes raised in the context of a criminal trial, we believe that those reports and the interviews of the witnesses involved should be available to both sides so that they can properly litigate the issues that are raised in this case. Now, this is not a fishing expedition. We're not looking for an Internal Affairs report so that we can fish through it and see whatever we might find that may be helpful, but--

THE COURT: Let me stop you for my clarity. Your request is for statements made during this investigation.

MR. UELMEN: Precisely.

THE COURT: It is limited merely to statements of potential witnesses or witnesses that will testify in this case.

MR. UELMEN: That is correct. We are not seeking conclusions. We are not seeking recommendations. We are not seeking any personnel action recommended with respect to any particular officer. We are looking for the statements of witnesses because those witnesses are material in this trial with respect to the same issues that were being investigated by Internal Affairs. We're talking about witnesses who will testify in this trial before the jury; notably, Michele Kestler, who was the director of the laboratory, commander--then commander, now deputy chief, David Gascon. And their testimony will relate directly to the subject of the investigation by Internal Affairs, that is leaks to the press. And also Mr. Matheson. So we believe that these statements--

THE COURT: Who is Mr. Matheson?

MR. UELMEN: Mr. Matheson is a deputy director of the laboratory. And all of these people were, of course, the focus of the Internal Affairs investigation into where the leaks were coming from of testing results in the course of the investigation and preparation for trial of this case. The issue is also relevant in the context of the--oh, I'm sorry. I've just been reminded that Erin Reilly and Collin Yamauchi, who are also employees of the laboratory, may have been interviewed in the course of this investigation. This investigation is also relevant in the context of the pending matter before Judge Ito with respect to piercing the shield law, because one of the factors that the Court is required to look at in determining whether the newsmen's or newsperson's shield law should be pierced, is whether there are alternative sources available to get the same information. And to the extent that these witnesses were interviewed with respect to their knowledge of leaks, we do have the exhaustion of an alternative source which may be a very compelling argument in favor of piercing the newsperson's shield law because now we are left with only the newspersons as the source of information about where these leaks came from. And finally, they're relevant in terms of any potential exculpatory material. Because the question of leaks has become a substantive issue in the context of this trial, we believe that any information that reveals the possibility of leaks within the Los Angeles Police Department may be exculpatory evidence that the Defendant is entitled to under Brady versus Maryland. So for all of these reasons, we believe--

THE COURT: Well, what type of--I mean, unless you have some theory of an exculpatory statement, then in that sense, it would be a fishing expedition. What are you looking specifically for?

MR. UELMEN: We are looking specifically for information as to who had access to the information that was leaked, when they had it. We believe that the investigation may disclose a chain of events that points an inference or a circumstantial suggestion with respect to particular individuals who may have been the source of the leak. And we believe that that would come within the Brady rule in terms of being potentially exculpatory evidence to show that in fact, these leaks did come from the Los Angeles Police Department.

Now, for all of these reasons, the report we believe is relevant to issues that we are litigating in this trial. But we're not even asking that the report simply be turned over to the Defense. All that we're asking is that Judge Ito be allowed to conduct an in camera inspection of the report to see whether there is relevant and material evidence that should be made available to the Defense contained within that report. And under section 915 of the evidence code, whatever privileged information may be in that report can continue to be protected. And again, I emphasize that we're not asking for privileged personnel files. We are asking for actual witness statements that are a result of this investigation. Even the shield of personnel records, however, is not an impenetrable shield. Like any other shield--

THE COURT: But we're not talking about personnel records.

MR. UELMEN: Well, we're not. We're not.

THE COURT: I don't want to get off into something that is not pertaining to your request.

MR. UELMEN: All I want to emphasize, your Honor, is that the bottom line here is the Defendant's right to a fair trial and accommodating that right while still respecting whatever privileges may pertain with respect to any of this information. And we believe that this issue is such an important issue to be litigated in this trial, that to withhold from the Defense an investigation conducted by the Los Angeles Police Department into the very allegations and issues that we are litigating involving interviews of the very same witnesses whom we are calling as witnesses in this trial gives us a right of access to those interviews. Could I have just a moment?

THE COURT: Yes.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: I realize I have been making the assumption that your Honor is fully familiar with the relevance and materiality of the leaking issue in this case and perhaps I should take a moment to make sure that your Honor is aware of the context in which this issue arises.

THE COURT: Okay. Be somewhat brief. I believe that I am. I understand what you're asking for and the reasons you're asking for it. My concern is, apparently you interchange the report, assuming there is a report, with any statements made by one of these four or five witnesses or potential witnesses. And my concern is or at least my understanding of your request is only previous statements, if they were made by one of these five people to the LAPD Internal Affairs in regards to the issue which you present, and that is the leaking of information to the press.

MR. UELMEN: Well, let me clarify that, your Honor. We believe the entire report should be turned over to Judge Ito for an in camera inspection. We don't claim that we're entitled to see the entire report. Judge Ito can then glean from the report whether there are specific witness statements that relate to witnesses that are irrelevant to these proceedings and, at the same time, he can ascertain whether there is Brady material contained in the report. I don't know that. I'm kind of flying blind. But we would like the in camera inspection to address both of those issues. And we believe it could also inform Judge Ito's resolution of the newsperson's shield law as well in terms of providing him with a factual basis for a finding that there is no reasonable alternative to piercing the newsperson's shield law.

So we think it's relevant for all of those purposes, but we recognize that we're entitled at least initially to the witness statements, and beyond that, we will rely on the in camera inspection. Now, the relevance of the leak, of course, is the fact that this leak occurred before DNA results had been obtained. In the case of one leak, the leak occurred very shortly after DNA results had been faxed to the LAPD laboratory. And from the standpoint of the defense being presented in this case with respect to the motive of the Los Angeles Police Department in terms of a motive to plant evidence, in respect to the integrity with which the evidence was handled, the fact that a leak emanated from the Los Angeles Police Department about DNA results before a DNA test had even been conducted, evidence is a good deal of confidence about those results that we believe would be informative for the jury in terms of resolving the issues that are directly presented by the Defense in this case.

THE COURT: All right. But that's pretty much covered I think in your motion filed August 1.

MR. UELMEN: Thank you.

THE COURT: All right. Thank you, Mr. Uelmen. Mr. Walsh, would you like to respond?

MR. WALSH: Thank you, your Honor. I have I guess a three-part argument that I want to formulate. The first has to do with clarifying what it is that the Defense is seeking here. Dean Uelmen suggested that this is not a pitchess motion and you tended you said to agree. We use a lot of shorthand in criminal law, and I think the phrase "Pitchess motion" certainly is one of those shorthand phrases. The statutory scheme goes beyond a request for personnel records which we most frequently see in police abuse cases or wrongful arrest cases. Penal code section 832.7 defines two types of records which are confidential. The first type of records are police personnel records. These are further defined in penal code section 832.8. The second type of record, however, that section 832.7 talks about are records of complaints maintained pursuant to penal code section 832.5.

THE COURT: Which are citizens' complaints.

MR. WALSH: Well, these are complaints that the department has investigated. I don't think--I understand that the statute uses the word "Citizens," your Honor, but I don't think the word "Citizens" should be viewed as anything more than a descriptive word. I don't think it's intended by the legislature to have a limited meaning.

THE COURT: Are you suggesting that if there was internal investigations, that it was based upon some outside party or an internal request from the Los Angeles Police Department to investigate the accusations that were made?

MR. WALSH: I suggest that it doesn't make any difference, your Honor, because initially, the legislature commands police departments to set up mechanisms for receiving and investigating citizen complaints. That's at penal code section 832.5. I don't know what the legislature had in mind when they used the word "Citizen." I'm quite clear for one thing that they didn't mean to preclude noncitizen aliens from being able to have their complaints about police misconduct heard.

THE COURT: No. But I think it is clear, at least in my reading, that is a complaint made by somebody outside of the police department.

MR. WALSH: Well, the reason why I don't agree with that, your Honor, is that the legislature in enacting section 832.5 was attempting to deal with the issue which had arisen previously and which was addressed in the pitchess decision regarding police department destruction of records of investigations, and they were attempting to balance the need of a police department to maintain some confidentiality in its records with the public's need to have access upon sufficient showing. And I do not think that that difference turns on whether the investigations stem from a complaint made by an insider or a complaint made by an outsider because the social importance of having the confidentiality of those reports and at the same time granting access upon a sufficient showing is identical whether it be an outsider complaining about police misconduct or an insider complaining about police misconduct. I have been representing Internal Affairs for many years and I can represent to the Court that a great number of complaints regarding police misconduct originate from police officers. As a matter of fact, Los Angeles police officers are under an affirmative duty to report to their superiors any instances of misconduct or abuse which they see, and these are then investigated pursuant to the methods that the police department set up under the direction of the legislature in section 832.5. When the legislature said in section 832.7 that those documents were confidential, I think they had in mind that they were protecting the interest of the police department and maintaining confidentiality of any type of internal investigation of misconduct, and I think those two analysis should be overcome. When the Los Angeles Police Department established its procedures, it decided to include complaints, whatever their source, in this same general umbrella of coverage that's set forth in the declaration submitted by the police department by Commander Davis. The police department has traditionally insisted that these records be considered under the rhetoric of evidence code section 1043. This is not a particularly onerous demand to place upon criminal defendants or plaintiffs in civil suits. All that is required to obtain exactly the result that Dean Uelmen is asking for is that they comply with the procedural requirements in 1043, a noticed motion, a declaration laying out materiality identification of the officers whose records are being sought and then leave it to the Judge to make a determination of whether the materiality has been met and whether the procedures have been met. I don't know whether they can do that. I've heard Dean Uelmen express statements today as to why these matters are material. They were never incorporated in any sort of an affidavit. The affidavit that was submitted with the subpoena duces tecum is certainly insufficient to justify intrusion into confidential records. It's merely a boilerplate statement. I don't think that it's asking too much of this team of highly experienced and competent Defense attorneys to simply comply with the legislature's directive. These documents are privileged. Now, the second part of my argument really is derivative of the first. I'm not clear what it is that the Defense is requesting. I was given the subpoena duces tecum for the Internal Affairs report and I responded to that in my motion to squash. I'm aware that there was a motion filed with the Prosecution. A copy was handed to me, but it was not served to the police department and certainly not directed at the police department. Dean Uelmen today said that the SDT is basically mooted out and yet his concluding statements, he suggested that nonetheless, he thinks that report should go before Judge Ito for an in camera review. Frankly, I don't care whether Judge Ito reviews some or all of the report. My clients, however, believe that the Defendant should be held to the letter of the law. If they want to review these, they should meet the requirements set up by the legislature for reviewing confidential documents. They have done it in the past. There have been many other motions before this court, decided by this court in which the Defense has done precisely that. We have reviewed peace officer personnel records. We have reviewed by means of a pitchess motion an investigation into allegations that one of the witnesses in the lawsuit, in the Prosecution, a police officer had made references to the deceased that suggested that he had more knowledge of her than he would in the normal course of affairs. All of these were done under the rhetoric of pitchess and under the guidance of section 1043. I don't understand why we have deviated from that at this point, and I would ask the Court to rule that the Defense should meet the 1043 procedural requirements.

THE COURT: Which of course one of which is a 15-day notice, which means we delay the proceedings.

MR. WALSH: And the last time we were in here, your Honor, in February, I was willing to waive that and we got the motion in two days. I'm not trying to make this trial last any longer than it's already lasted, but I haven't seen a declaration of materiality that I could address to decide whether the confidentiality of these records should be overcome.

I don't understand, and perhaps because I'm not fully a part of this trial, but only a very peripheral number, what the materiality is between the suggestion, their suggestion that a Los Angeles police employee is responsible for leaking information to the press in any relevant issue in this. It may very well be there, but it's not something that's clear to me, and I can't stand here and argue it without having it laid out for me. My clients are entitled to have a lawyer who can address these issues, and I can't do that. I don't understand how it is that the Defense sees this as a relevant matter. In terms of the exculpatory, potentially exculpatory nature of anything contained in this report, the police department is certainly aware of its constitutional obligation to disclose exculpatory information to the Prosecution so that it can be turned over to the Defense, and the police department has never hesitated to do that. I'm not making any representation about what is or is not in the report, but that's really not at issue. This is not a motion to obtain potential exculpatory evidence. It doesn't come into play. The bottom line Dean Uelmen said is the Defendant's right to a fair trial. Fairness is the process that we're looking for here, but that fairness applies equally as well to the police officers and other department personnel whose records are being sought as part of this internal investigation, and I would ask the Court to require the Defense to comply with the requirements of the statute. Thank you.

THE COURT: I'm not going to let you get away from the microphone that quick.

MR. WALSH: All right.

THE COURT: So in essence, what you're saying is, if they conform with what you believe the requirements of the penal code and the evidence code, then you will comply by bringing those records in for an in camera review if it falls within 1043 and 1045 of the evidence code?

MR. WALSH: I'm not trying to say I won't comply at all. I have the custodian of records here right now if it's ordered that we have an in camera review. But my point is that this is a two-step process, and the first step is the Judge is required to make a determination of materiality based upon an affidavit and I'm entitled to challenge that once I've seen it. I haven't seen it yet.

THE COURT: That's assuming that it falls within the 832.5 and .7 penal code sections, that it is a citizen's complaint, and we can argue and debate whether this is a citizen's complaint, and whether it then--procedurally we have to go through what is required under 1043.

MR. WALSH: Well, I'm over here in response to the subpoena duces tecum as is the custodian of records and that's basically all that I'm addressing, and that subpoena is clearly seeking the very type of report that's identified by section 832.5. There is also a motion that's in front of you directed to the Prosecution asking them to produce records which they don't have and which, if they were to ask the police department to provide to them, very likely the police department would say no. That would be back-dooring the requirements of evidence code section 1043. Tell the Defense to make a pitchess motion. And I--I'm not--I do not feel that the police department was properly put on notice that this motion was addressed to them by being handed to me in court. It's not addressed to the police department. It's addressed to the Prosecution. The police department relies on the provisions of section 1043, which says they are entitled to separate notice. They haven't received that notice. But I'm not trying to stonewall anyone. I think it's important that these arguments be made and that the law be adhered to. If you decide otherwise, as I said, I have these records here and we are ready for an in camera review, but I don't think it should be called for on the record before this court.

THE COURT: All right. Thank you. Mr. Uelmen.

MR. UELMEN: Very briefly, your Honor. I don't think there's much question but that the substance of everything that 1043 requires is in our moving papers. What is missing, however, is the identification of any particular officer because that's not what we are seeking. And I think that goes to the heart of why--what we're pursuing is not a pitchess motion. A pitchess motion is directed to personnel records of a particular named officer. Now, we could put a list together if we want to play guessing games of every officer we think that Internal Affairs might have talked to in the course of this investigation.

THE COURT: Let me stop you there. Unless I've misinterpreted what Mr. Walsh has said, he's not arguing that point. The point he's arguing, technically you've not conformed with 1043 and its requirements, but specifically its materiality of the subject matter that you have requested. And 1043 does require an affidavit which is not before me. It is merely a motion. And I don't stand on form over substance. If it was given to the District Attorney, I presume that he passed it on to Mr. Walsh. If that's incorrect, please inform me.

MR. WALSH: No. I was given a copy of it by the Defense, your Honor.

THE COURT: By the Defense?

MR. WALSH: By the Defense.

THE COURT: All right. So, you know, may not be technically the appropriate notice, but at least you were so informed. The question then becomes, is it material and have you reached that threshold to where then Judge Ito should have an in camera hearing to determine what should or should not be turned over.

MR. UELMEN: Well, the materiality is established by the very nature of the investigation that was being conducted. It was an investigation into the source of leaks of information in this very case. In fact, your Honor was inquiring whether this was a citizen complaint. The complainant was the Judge presiding in this trial. It was Judge Ito who initiated the request for some sort of internal investigation by the LAPD as to where these leaks were coming from in frustration experienced by all of the counsel in this case of picking up the morning newspaper and reading about lab results that we hadn't even seen yet, and Judge Ito took the extraordinary step of ordering that all of those results should no longer go to the Los Angeles Police Department, they should come directly to the Court and then be distributed to counsel. So this is not a personnel complaint with respect to any individual officer of the Los Angeles Police Department. It is an investigation into circumstances that relate directly to this case and to issues that we are litigating in this case.

THE COURT: Well, that's the question. What is the material issue? The fact that Judge Ito was frustrated because things were being reported at a time, at least as I recall, a time the jury was attempting to be selected obviously is quite frustrating and I'm sure that's the reason he asked for the investigation. But as to it being a material issue that is being presented to the trier of fact or before this Court, that is the issue of materiality.

MR. UELMEN: Well, it becomes a material issue in the context of the defense being presented in this case that evidence was compromised in the way that it was handled by the Los Angeles Police Department. And the fact that officers of the Los Angeles Police Department were leaking test results before the tests had even been conducted is highly material in terms of the trier of fact resolving that issue with respect to the integrity of the handling of the evidence in this case. So it goes directly to the whole chain of custody issue, to the issue of whether there was possible tampering with the evidence, to the issue of the motivation of the Los Angeles Police Department in the way it conducted the investigation of this case. Those are the issues we are litigating in this defense. And we're calling the same witnesses we believe that were interviewed. And, of course, we don't know that. We haven't seen the report. But we believe and we have testimony already from Michele Kestler in a 402 hearing conducted by Judge Ito that she was interviewed by officers of the Internal Affairs Division in the course of an internal investigation. So we know this investigation took place. We know of at least one witness who was questioned. There may be others. I--I believe Matheson also testified that he had spoken to officers. So it is not seeking personnel records. It is seeking an Internal Affairs investigation. And I think where we part company essentially is that they are reading the statutes and the evidence code sections as some sort of privilege for Internal Affairs investigations, and that's not what the statute or the evidence code provisions are talking about. They're talking about the protection of personnel records with respect to citizen complaints. We're talking about something else and we don't believe that the privilege created by the statute or the evidence code extends to any broad shield that can be erected around anything that Internal Affairs does regardless of its materiality or relevance to an ongoing criminal prosecution.

THE COURT: All right. Mr. Darden, I see you either getting antsy or you want to address the Court.

MR. DARDEN: Both, your Honor.

THE COURT: All right.

MR. DARDEN: Good afternoon, sir. Would the Court hear from Deputy D.A. Hank Goldberg on the issue of whether or not the information sought is relevant and material?

THE COURT: Yes. Mr. Goldberg.

MR. GOLDBERG: Thank you, your Honor. Good afternoon.

THE COURT: Good afternoon.

MR. GOLDBERG: I wanted to primarily address the issue of materiality, your Honor. But before I got into that, I just wanted to say a few words about the appropriate discovery vehicle that's previously been discussed by counsel.

THE COURT: Well, let me stop you. And I seem to think that we keep getting off the track or I don't understand where we're going. Mr. Walsh led me to believe that the issue really before me, is it material. If it is material, then he will in essence forego some of the other formalities of discovery since he's prepared to address that if the Court allows an in camera hearing. Mr. Uelmen says it's material because the Judge requested it and it pertains to the Defense. We all get back to the same issue, at least is my understanding, is it material to the sense that the Court should grant an in camera hearing to determine whether there is discoverable statements made by a potential witness in this case which should be used in preparing examination of that witness.

MR. GOLDBERG: I agree with the Court that does seem to be the primary issue, but if I understand what Mr. Walsh said, and I'm sure he'll correct me if I'm wrong, one of the reasons that he wants compliance with the so-called pitchess procedures is that he would like a declaration from the Defense so that he could determine whether or not it was material and fully understand what their argument is or what their facts are to support the allegation if this does have some materiality.

THE COURT: Is this the same issue that's presented to Judge Ito in the shield, the reporter's shield, as to whether it's material, to whether or not that shield should be pierced for the benefit of the Defendant's right to a fair trial as weighed against the reporter's right to protect sources?

MR. GOLDBERG: Yes, your Honor.

THE COURT: So are you not asking me or all of you not asking me to make the same decision that he has to make in that particular decision?

MR. GOLDBERG: Well, that's what I think, your Honor. And there's also a third context in which it comes up, and that's the People have filed a motion to preclude the Defense from cross-examining Michele Kestler about the subjects of the leaks, and the grounds that we stated in precluding that cross-examination is lack of materiality. So it actually has three potential impacts in this trial. And in all due respect to the Court, that's why I was a little bit confused as to how the Court could decide the issue of materiality given that that really is at the center of three distinct issues that are before Judge Ito and plays a key role in terms of the overall issues in this case and what is or is not at issue in this case. So I don't know how your Honor wants to deal with that problem.

THE COURT: Well, I'm somewhat disadvantaged. I don't know all the facts and the circumstances that have been presented nor the previous arguments. If we are down to that issue and if everybody agrees that that issue is before Judge Ito at least in two other circumstances, then I am prepared to allow him to make the decision as to whether or not it is material. If it then is material, if he rules that the subject is relevant, it is a material issue that should be presented, then I assume--strike that--then it would be the Court's intended order to allow an in camera review of the internal investigations reports dealing with witnesses' statements. If he rules it is not material, then this all becomes moot and the intended ruling of this Court is that it would not be discoverable. Now, Mr. Walsh, you want to respond?

MR. WALSH: I want to briefly agree with what Mr. Goldberg said and clarify the police department's position. We do believe that the basic issue is materiality. I don't know whether it's the same question of materiality involved in the reporter's shield law involved in the Prosecution motion that Mr. Goldberg referred to, but the question is materiality. However, the police department wants to insist on its 1043 right to have that materiality laid out in a declaration and affidavit, not by representations of counsel.

THE COURT: All right. Let me stop you there. Mr. Uelmen, I think they technically have the right to have that affidavit or declaration. When can that be prepared and served upon Mr. Walsh for the L.A. Police Department?

MR. UELMEN: We can take the material that's in our moving papers and put it in a declaration and file it tomorrow. But again, that is assuming that this motion is governed by the pitchess requirements. I think your Honor is on the right track with respect to the determination of materiality. In fact, section 1045 of the evidence code which honors the right of the Defendant to material that is relevant to the subject matter in the pending litigation provides that in determining relevance, the court shall examine the information in chambers in conformity with section 915. So what's initially required to get production of the report is simply a prima facie showing of materiality like in a discovery motion. It has potential relevance. And then once it's produced, the court makes that determination in the course of its in camera inspection. There's certainly more than enough to show the prima facie materiality in our moving papers, and we can put that in a declaration form, although we don't believe that that's required because it's not a pitchess motion.

THE COURT: Well, once again, I think it's form over substance. But I'm going to require that of the Defense, to present that to Mr. Walsh or a representative of the Los Angeles Police Department. I think the Court always has to determine whether something is material before it should be turned over by way of discovery. Whether or not it falls within the four corners of 1043 and 1045 and the other sections that we have previously mentioned, I think at that point, when Judge Ito has an opportunity to review the affidavit or declaration, then I think that it would be appropriate because he's far more familiar than I to make the determination as to whether or not it's material. And, if necessary, I will then, based upon his decision, make a ruling whether or not there should be in camera proceedings for which I understand all parties have agreed that he will hold, he will review whatever is available and then make the decision as to what is discoverable or not. I will only make the order if he makes a determination it's material. Now, does anybody want to add anything at this point or we'll leave it at that?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: If I might address the Court briefly in that regard.

THE COURT: Mr. Cochran.

MR. COCHRAN: Good afternoon, your Honor.

THE COURT: Good afternoon.

MR. COCHRAN: In that regard, your Honor, it's a scheduling matter. We certainly appreciate what your Honor's indicated. We seem to be on the right track here. We can certainly have that declaration tomorrow morning. As a matter of importance, however, we're at that stage in the trial where these may very well be the next witnesses. I have represented to Judge Ito this afternoon that we need a ruling on this along with some other motions he's working on that will also be important. We don't have other witnesses at this point in the trial. So we need to get this done and need your availability perhaps tomorrow morning because we want to resolve this, get this to Judge Ito. He can make his judgment regarding materiality. If you then rule or make an order, he can then review the documents and then make a determination because these will be our next witnesses. We need time to look at those reports before calling those individuals.

THE COURT: All right. Well, I'm available anytime after 7:00 tomorrow morning. I think you need to make some arrangements with Mr. Walsh and Mr. Darden and whoever else what time those will be presented and then present it also to Judge Ito and give him the opportunity to review them.

MR. WALSH: I think we're also entitled to make some argument about them, which means we'll need to have time to review and, if possible, to prepare points and authorities in response to it.

THE COURT: Mr. Walsh, I understand your position, but I suspect this is not coming totally as a surprise to you.

MR. WALSH: Nor is it coming totally as a surprise to the Defense either, your Honor. They've had I believe 10 months to prepare this motion. They have had six days since I filed my motion to quash the SDT where I put them on notice that I was claiming this was covered by the provisions of section 1043. They're waiting until this afternoon and now they're saying, gee, they have to have an expedited ruling on it. I think that the police department is entitled to have its opportunity to be heard in this matter. The legislature has set out the procedures. I'm not insisting on 15 days, but I don't want a five-minute or two-hour turnaround either.

THE COURT: All right. What time, Mr. Cochran, will you have that declaration before the Court?

MR. COCHRAN: I'm sure we can have it here by 8:30 tomorrow morning and we would expedite it and we certainly aren't dragging our feet because, you know, Mr. Walsh--

THE COURT: No. Let's not make accusations. It accomplishes nothing. Let's try to expedite it, giving both sides an opportunity to a full hearing and to litigate the issues. You'll have it by 8:30. Is there a time set tomorrow for the return of the jury?

MR. COCHRAN: We have not reached--I think the jury may still be somewhere upstairs now I believe, your Honor. They've not been released yet. So the Court still can do that. We perhaps still need to speak with Judge Ito after this is over, all parties.

THE COURT: All right. Why don't we stand in recess at this particular time. Let me have an opportunity to confer with Judge Ito and then, if necessary, with counsel in regards to when we can have an opportunity for not only Mr. Walsh, but for he to review the declaration and make a determination and, if necessary, hear from counsel. And I will make myself available tomorrow at any time so we can hopefully resolve this to everybody's satisfaction. All right. Let's stand in recess then.

(Recess.)

LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 8, 1995 2:45 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record. I understand we need to settle some scheduling matters. Counsel?

MR. COCHRAN: Yes, your Honor. May I address the Court--

THE COURT: Yes.

MR. COCHRAN: --just briefly? As I understand it, Judge Reid has listened to the arguments of counsel and has basically concluded that if the Defense were to proffer a declaration regarding materiality, which I represented we would have here tomorrow at 8:30, he would then ask that your Honor consider this declaration of materiality. He would then--if you found it material, which we trust you will, he will then make an order turning over certain reports conducted by Internal Affairs. And we were then in kind of a scheduling quandary. I indicated to him, as I told you, these are our next witnesses. We need to get an idea of scheduling. They're available, but we need time to go through the reports, sanitize them and get ready for the next witnesses. The Court is aware of who those witnesses are.

THE COURT: You know, this actually compounds the issues regarding the Bosco issue.

MR. COCHRAN: Yes. That's the other part.

THE COURT: This broadens the source of alternative sources, which is really where we're going with all of this.

MR. COCHRAN: Yes.

THE COURT: So you're saying that I need to make an initial finding of materiality first--

MR. COCHRAN: We think so.

THE COURT: --before I even get to the balancing test, the other balancing tests that are suggested in Delaney. Is that--

MR. COCHRAN: I think it's a threshold finding really, your Honor, that Judge Reid--I mean we all agree you are in a better position than Judge Reid being disadvantaged, you know, to make that particular finding. This issue can somewhat stand on its own, but we wanted--as Mr. Uelmen indicated to you, we think this issue should proceed before your other issues because it will assist you hopefully.

THE COURT: Yeah. I see the point. All right.

MR. UELMEN: I think what--where we're at is, the threshold determination of materiality needs to be based on this declaration, but the issue of relevancy is part of the in camera review under section 1045. So all we're talking about is kind of a prima facie showing of materiality at this point to get the records turned over. At that point, your Honor reviews them. We believe that review can encompass a determination of whether there are witness statements that the Defense is entitled to, whether there is Brady material in the report and whether this alternative source has been exhausted in terms of the newsperson's shield law determination that your Honor has also considered.

THE COURT: All right. Mr. Walsh.

MR. WALSH: One question in terms of scheduling that was left unanswered is to what extent the city and the police department will have an opportunity to review the declaration and submit some sort of response regarding our view of its materiality.

THE COURT: How about if we do this? How about if I direct you and the representative of the Defense handling this matter to be present here tomorrow morning at 8:30 to--

MR. WALSH: I have a conflict, your Honor. I have a civil court appearance. I may be able to have a different attorney cover this or that, but at this moment, I'll have to work that out. All right. Why don't we--let's do the at 8:30, and I'm not sure it will be me.

THE COURT: 8:30. And then on the record at 9 o'clock, I'll allow you to make any representations or any argument in contravention to the declaration of materiality rather than require a written response. So I think that will expedite matters. And I will be prepared tomorrow morning at 9 o'clock after I hear the arguments to rule on whether or not there's been a prima facie showing of materiality.

MR. WALSH: And we can then do the in camera if you make the determination?

THE COURT: Yes.

MR. WALSH: So I would have the custodian present for that.

THE COURT: Yes. Have them available within a short period of time on call.

MR. WALSH: All right.

THE COURT: All right. Okay. What else do we have left?

MR. COCHRAN: We have one other motion. But then based upon that, your Honor, I suppose, just as a matter, could the Court give me some inkling of then what your Honor's pleasure is going to be regarding the ruling that may also follow this ruling and because we'll know then better who our next witnesses are going to be, because that's the issue.

THE COURT: Well, here's the problem, Mr. Cochran. Once I make a finding of materiality, assuming that that occurs, then Delaney sets out four different criteria that I then have to contemplate a balance. I won't know what those criteria are unless and until I conduct the in camera hearing with IAD, or if that avenue is foreclosed, then that becomes a moot issue, and then it's a different equation. Then assuming we get past all of that--and let's assume that I issue an order directing Mr. Bosco to testify, then they are going to request a stay as they've indicated that they're going to challenge that. So--and it would be my preference to, you know, allow them some time to take whatever appellate remedies that they have available to them. So my guess is that we ought to probably prepare to go forward with witnesses in the next day or two other than these people. Because let's assume that all the cards fall in your favor and we do have--and I do require the news media people to testify. They are going to request stays and go to the Court of Appeal, and they won't be available until, at the earliest, the end of week, perhaps the beginning of next week.

MR. COCHRAN: All right. Given that thought, your Honor, we will then--

THE COURT: And the Prosecution has all along said they're going to raise 352 objections to all of this as being speculative unless there is a very clear connection between this and that.

MR. COCHRAN: We think we can make that. But we will out of an abundance of caution--

THE COURT: So my suggestion to you is that you be prepared to go forward with witnesses other than this circle of witnesses.

MR. COCHRAN: All right. By Thursday, is that what you're saying to me?

THE COURT: How about tomorrow?

MR. COCHRAN: Well, we have some work tomorrow morning certainly.

THE COURT: How about tomorrow afternoon?

MR. COCHRAN: Let me see if--I hope we can do that.

THE COURT: It would thrill me to death if I had the morning to work on this stuff.

MR. COCHRAN: That would be fine then as far as the jury. Let us then see where we are. Let's try to be ready tomorrow afternoon with some witnesses. We don't want to delay the trial if at all possible. We'd like to go in the order we've talked about. But I understand the procedural problem.

THE COURT: Even if I ruled in your favor today--

MR. COCHRAN: Yes.

THE COURT: --we still wouldn't have live witnesses really available until next week my guess, and Dean Uelmen is nodding that he thinks that's probably true.

MR. COCHRAN: We probably can--well, we'll work that out, your Honor. We'll try to have some witnesses for tomorrow afternoon hopefully.

THE COURT: All right. Then let Mr. Darden and Miss Clark know.

MR. UELMEN: I will. I think we can proceed with--

(Discussion held off the record between Defense counsel.)

THE COURT: All right. Mr. Walsh, thank you very much, sir. See you tomorrow morning.

MR. DARDEN: Judge, are we contemplating calling a witness other than Dr. Baden now?

MS. CLARK: What about the Stockdale matter?

THE COURT: I assume the Stockdale matter will be resolved this afternoon.

MS. CLARK: Will be resolved this afternoon?

THE COURT: My recollection is that counsel contacted the Court or the Court contacted counsel, and he and she are available this afternoon is my understanding.

MS. CLARK: I'm sorry?

THE COURT: She's en route.

MS. CLARK: Okay. I heard she was going to be here at 2:30. That's why.

THE COURT: Well, she may still be stuck at the metal detector.

MR. UELMEN: If we could have an opportunity to confer with her, then proceed.

THE COURT: I assume we can resolve this without a full hearing once she's here.

MS. CLARK: I thought the Court wanted testimony to resolve it.

THE COURT: No. As I indicated to you, there's a factual dispute. One side says one thing, the other side says something else. If she's here, she can tell us one way or the other.

MS. CLARK: Right. I assumed you'd want that in the blue chair, but--

THE COURT: Well, if she comes in with a tape recording and says here it is--

MS. CLARK: That would be great.

THE COURT: You never know. All right. So my proposal is for this afternoon then that we release the jury, that we stand in recess until the arrival of Miss Stockdale and her counsel.

MR. COCHRAN: May we approach for one minute?

THE COURT: Sure.

(A conference was held at the bench, not reported.)

THE COURT: All right. Thank you, counsel. We'll stand in recess then until Miss Stockdale and her counsel arrive, and we'll conclude with that hearing today. All right.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. I understand we have Miss Stockdale available and her counsel; is that correct? All right. And who are the counsel appearing with Miss Stockdale?

MR. NOLAN: Tom Nolan.

MR. SCHUSTER: John Schuster.

THE COURT: Good afternoon. And spell your last names for the court reporter, please.

MR. NOLAN: N-o-l-a-n.

MR. SCHUSTER: S-c-h-u-s-t-e-r.

THE COURT: All right. Counsel, what we're here for is a discovery proceeding to determine the whereabouts, history, et cetera, of a certain telephone answering machine tape recording. Have you conferred with your client?

MR. NOLAN: We have, your Honor. We also have conferred with both the District Attorney's office and Defense counsel and explained the situation, and Miss Stockdale is prepared to testify this afternoon.

THE COURT: All right. Then we'll proceed.

MR. NOLAN: Thank you.

THE COURT: And, counsel, if you feel it's necessary to consult with your client anytime during the examination, feel free to ask leave of the Court for that purpose.

MR. NOLAN: Thank you. We expect it not to be necessary. Thank you.

THE COURT: All right. Miss Clark.

MS. CLARK: Thank you. People call Gretchen Stockdale.

THE COURT: All right. Miss Stockdale.

Gretchen Stockdale (402), called as a witness by the People, pursuant to evidence code section 402, was sworn and testified as follows:

THE COURT: All right. Miss Stockdale, face the clerk, please.

THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?

MS. STOCKDALE: Yes, I will.

THE CLERK: Please have a seat in the witness stand and state and spell your first and last names for the record.

MS. STOCKDALE: My name is Gretchen, G-R-E-T-C-H-E-N, Stockdale, S-T-O-C-K-D-A-L-E.

THE CLERK: Thank you.

THE COURT: Miss Clark.

MS. CLARK: Thank you, your Honor.

DIRECT EXAMINATION BY MS. CLARK

MS. CLARK: Good afternoon, Miss Stockdale.

MS. STOCKDALE: Good afternoon, Miss Clark.

MS. CLARK: Thanks for coming in.

MS. STOCKDALE: Sure.

MS. CLARK: Were you acquainted with the Defendant back in 1994, ma'am?

MS. STOCKDALE: Yes.

MS. CLARK: And as of June 12th, 1994, had you been dating him for some period of time?

MS. STOCKDALE: No. I wouldn't characterize it as dating.

MS. CLARK: When had you met?

MS. STOCKDALE: Oh, in 1988 casually at a charity event.

MS. CLARK: And then had you seen him again after that?

MS. STOCKDALE: Yeah. We ran into each other several times over the years.

MS. CLARK: And at what point did you--well, did you at some point begin a dating relationship?

MS. STOCKDALE: Like I said, I wouldn't characterize our relationship as dating. We had a good communicative friendship. And in 1993, around the fall, I contacted him to actually ask his advice on an investment issue.

MS. CLARK: Okay. At some--what kind of contact had you had? Did you ever meet for dinner?

MR. UELMEN: Your Honor, we'll object as irrelevant.

THE COURT: Overruled.

MR. UELMEN: For this issue.

THE COURT: Overruled.

MS. STOCKDALE: Could you be more specific, what are you--

MS. CLARK: By MS. CLARK: Yeah. Between 1988 and 1994, did you ever meet him for dinner?

MS. STOCKDALE: No. Actually I--

THE COURT: Counsel, all I'm really interested in is the flavor, the nature of the relationship. So let's not go too far with this.

MS. CLARK: Okay. Were there any intimate dinners that you had--

MS. STOCKDALE: No.

MS. CLARK: --during the scope and time that you saw each other?

MS. STOCKDALE: No.

MS. CLARK: Did you ever see each other in person?

MS. STOCKDALE: Yes. As I said, I ran into him several times on different occasions, NFL functions, charity events. I actually did run into him in a restaurant one time, and he was on a date with Paula and I joined them briefly.

MS. CLARK: Okay. Then at some point in the year of 1994, did that relationship become more intimate?

MS. STOCKDALE: No.

MS. CLARK: Never at any point?

MS. STOCKDALE: Well, yeah. I think our communication increased around `93, as I stated, around the time I called and asked him for some advice.

MS. CLARK: And that was business advice?

MS. STOCKDALE: Yes.

MS. CLARK: All right. And then 19--did you continue then to have regular phone conversations after that point in time in 1993?

MS. STOCKDALE: Yes, I would say so.

MS. CLARK: And those business--were those conversations all regarding business?

MS. STOCKDALE: No.

MS. CLARK: They became more personal?

MS. STOCKDALE: Yes. We developed a friendship.

MS. CLARK: And did you discuss with him the nature of his relationship with Paula Barbieri?

MR. UELMEN: Objection, your Honor. Irrelevant.

THE COURT: Sustained.

MS. CLARK: Okay. Did you discuss with him the nature of his relationship with Nicole Brown Simpson?

MR. UELMEN: Same objection.

THE COURT: Overruled.

MS. STOCKDALE: Yes, periodically.

MS. CLARK: Okay. And when did you begin to have those conversations concerning Nicole with the Defendant?

MS. STOCKDALE: Around the fall of `93.

MS. CLARK: Did you continue to have those conversations with him through 1994?

MS. STOCKDALE: Yes.

MS. CLARK: When you had those conversations with him about Nicole, was that in person or on the telephone?

MS. STOCKDALE: Both.

MS. CLARK: And when you had those conversations with him in person, where did they take place?

MS. STOCKDALE: Oh, a number of different places. At his home, at my home, at a restaurant.

MS. CLARK: Okay. How many times would you say in the year of 1994 did you have conversations with him about Nicole in his home on Rockingham?

MS. STOCKDALE: I'm not really sure. I couldn't give you a number.

MS. CLARK: Can you give me an estimate like--

MS. STOCKDALE: How many times we spoke about Nicole?

MS. CLARK: In 1994?

MS. STOCKDALE: Specifically at his home.

MS. CLARK: Yeah.

MS. STOCKDALE: Is that what you're asking me? Oh, three times.

MS. CLARK: Okay. And when in 1994 was it that you had those conversations about her in his home?

MR. UELMEN: Your Honor--

THE COURT: Counsel, I think our focus here is the tape though. That's what we're interested in, correct?

MS. CLARK: Yes, your Honor.

THE COURT: All right.

MS. CLARK: All right. Can you tell us how many times you visited him in his home in 1994?

THE COURT: Counsel, let's move on to the tape.

MS. CLARK: Okay.

MS. CLARK: By June the 12th, 1994, did--had you formed a more intimate relationship with him in terms of personal discussions and involvement?

MS. STOCKDALE: In terms of communication, yes.

MS. CLARK: Okay. Had you made any--had he made any overtures to you about becoming his girlfriend?

MS. STOCKDALE: No.

MR. UELMEN: Your Honor--

THE COURT: Overruled. The answer will stand. Let's move on to the tape and the whereabouts of the tape, please.

MS. CLARK: All right.

MS. CLARK: On June the 12th, 1994, at some point, did you leave your home?

MS. STOCKDALE: Yes.

MS. CLARK: And did you come back and retrieve a message?

MS. STOCKDALE: Not on the 12th, no.

MS. CLARK: Okay. When did you retrieve that message?

MS. STOCKDALE: I retrieved a message on the 13th, but not from my home.

MS. CLARK: All right. Did you have an answering machine or message service?

MS. STOCKDALE: Yes. It's an answering service, telephonic answering service.

MS. CLARK: Can you tell us how that works?

MS. STOCKDALE: It's my voice on the machine and you can leave a private message on that machine. Then I call in and enter a code and retrieve my messages.

MS. CLARK: Okay. Is that like voice mail?

MS. STOCKDALE: Yes.

MS. CLARK: And did you retrieve some voice mail on June the 13th?

MS. STOCKDALE: Yes.

MS. CLARK: And was that message from the Defendant?

MS. STOCKDALE: Yes.

MS. CLARK: Did you have an accurate recording of the time on your voice mail?

MS. STOCKDALE: It states the time on my voice mail, what time the message comes in.

MS. CLARK: Okay. And do you--if you know, as of June the 12th, 1994, in the evening hours, was the time stamp on your voice mail accurate?

MS. STOCKDALE: As far as I know, yes.

MS. CLARK: You had not made an independent check?

MS. STOCKDALE: No.

MS. CLARK: All right. When you retrieved the message, did it indicate that the message from the Defendant came in at 7:35 P.M. on the night of June the 12th?

MS. STOCKDALE: Yes, it did.

MS. CLARK: And I'm going to read to you a quote from the New York daily news. I'm going to ask you to tell me whether or not this seems to replicate the message that you recall being left for you, okay--

MS. STOCKDALE: Okay.

MS. CLARK: --on the night of June the 12th at 7:35 P.M., okay?

MS. STOCKDALE: Okay.

MS. CLARK: Quote, "Hey, Gretchen, sweetheart, it's Orenthal James who is finally at a place in his life where he is like totally, totally unattached with everybody, ha, ha." And, "Uh, in any event, umm, I've got a Sunday evening and I'd love--I guess I'm catching a red eye at midnight or something to Chicago, but I'll be back Monday night. Uh, if you'll leave me a message, leave it on 310--" and then a number, and then, "That's 310--" and then the number repeated again. Do you recall what I've just stated to you as being the message left for you by the Defendant on the night of June the 12th, 1994?

MS. STOCKDALE: I can't recall verbatim, but it appears close, yes.

MS. CLARK: It sounds right?

MS. STOCKDALE: Yes.

MS. CLARK: If I showed you this and let you read it, would that help you to state whether or not this is an actual rendition of the message you got?

MS. STOCKDALE: You could show it to me. But again, I haven't heard it for quite some time. So I don't know if word for word it's correct, but the--it's basically what I remember.

MS. CLARK: Okay. I'll let you look at it in a minute and see if that helps you anymore.

MS. STOCKDALE: Okay.

MS. CLARK: But then you picked up that message on June the 13th; is that right?

MS. STOCKDALE: That's correct.

MS. CLARK: From your voice mail?

MS. STOCKDALE: Yes.

MS. CLARK: Did you preserve that message in some manner?

MS. STOCKDALE: Yes, I did.

MS. CLARK: And how did you do that?

MS. STOCKDALE: Just by pressing the number that indicates "Save" on my machine.

MS. CLARK: And you saved the message on--was that a regular tape or a microcassette?

MS. STOCKDALE: Well, I'm not sure what they have at the answering service. It's whatever they have in their building. I'm not sure what--how they use it, maybe computer or disk.

MS. CLARK: Okay. Now, the statement that he makes in here that he said he's finally in a place in his life where he's totally unattached and he said he'd love to--"Evening, I'd love--I guess I'm catching a red eye. I'd like to get together Monday night," was this the first time that he had made such a statement to you about being free and available?

MR. UELMEN: Objection. Irrelevant, your Honor.

THE COURT: Sustained. I'm interested in where the tape is.

MS. CLARK: All right. You pressed the button "Save"?

MS. STOCKDALE: Yes.

MS. CLARK: Then what did you do? Did you ever retrieve that tape physically?

MS. STOCKDALE: At a later date. I asked for a copy.

MS. CLARK: Okay. From your answering service?

MS. STOCKDALE: Yes.

MS. CLARK: And they gave it to you?

MS. STOCKDALE: They mailed it to me.

MS. CLARK: And was it a microcassette or a regular cassette.

MS. STOCKDALE: It was on a regular size cassette.

MS. CLARK: Okay. And then when was it that you got that cassette physically in your possession?

MS. STOCKDALE: That one I received on--I don't know--a week or so after the message was left.

MS. CLARK: Okay. So that would have been the 19th of June?

MS. STOCKDALE: Or the--around the 20th.

MS. CLARK: And when you got that cassette in your physical custody, what did you do with it?

MS. STOCKDALE: Put it away.

MS. CLARK: In--

MS. STOCKDALE: Just in my closet I think.

MS. CLARK: Okay. At some point in time, did you have a conversation with a Defense investigator by the name of William Pavelic?

MS. STOCKDALE: Yes.

MS. CLARK: And when was it that you had that conversation with him?

MS. STOCKDALE: It was sometime September, October--I can't remember clearly--of that year.

MS. CLARK: And in--do you recall having a conversation with D.A. investigator by the name of Dana Thompson on June the 21st, 1995?

MS. STOCKDALE: Yes.

MS. CLARK: And do you recall telling him that you turned over that tape to William Pavelic, the Defense investigator, in September of 1994?

MS. STOCKDALE: Yes.

MS. CLARK: Okay. And does that seem to the best of your recollection at this time an accurate time for when you gave Mr. Pavelic that tape?

MS. STOCKDALE: Yes.

MS. CLARK: Okay. And then when you had the conversation with Mr. Pavelic, you at that time physically gave him possession of that tape?

MS. STOCKDALE: Yes.

MS. CLARK: And did you tell him what was contained on the tape?

MS. STOCKDALE: Yes.

MS. CLARK: Did he tell you what he intended to do with it?

MS. STOCKDALE: Yes.

MS. CLARK: What did he tell you?

MS. STOCKDALE: That he would take it and listen to it and pass it on to other members of the Defense.

MS. CLARK: All right. Did he tell you whether or not he intended to present it in evidence?

MS. STOCKDALE: At that time, he didn't say one way or the other what he planned to do with it.

MS. CLARK: At that time, did he tell you whether or not he thought that they would call you as a witness for the Defense?

MS. STOCKDALE: No, he didn't.

MS. CLARK: Okay. You had no conversation about that at all?

MS. STOCKDALE: No. He--

MS. CLARK: I'm sorry?

MS. STOCKDALE: We didn't.

MS. CLARK: Did you expect to be called as a witness for the Defense?

MS. STOCKDALE: No.

MS. CLARK: Okay. Did you expect to--

THE COURT: Are there any copies of this tape anywhere? Did you make any copies before you gave it to Mr. Pavelic?

MS. STOCKDALE: Yes. There was another copy made.

THE COURT: All right. How did you do that?

MS. STOCKDALE: I held up a cassette recorder to the telephone, the actual telephone.

THE COURT: And what happened to that copy?

MS. STOCKDALE: That has been taped over.

THE COURT: When did you notice that it had been--when did you realize or discover that it had been taped over?

MS. STOCKDALE: Well, I didn't realize it. I did it several months ago.

THE COURT: All right. What is the name of the telephone answering company that provides the service for you.

MS. STOCKDALE: Prestige voice mail.

THE COURT: And where are they located?

MS. STOCKDALE: Lomita.

THE COURT: Miss Clark, anything else?

MS. CLARK: Yes. Thank you, your Honor.

MS. CLARK: Can you tell us, ma'am, how many times you've visited Mr. Simpson in the jail?

MR. UELMEN: Objection, your Honor. Irrelevant.

THE COURT: Sustained.

MS. CLARK: Can you tell us how many times you visited the Defendant in jail since June 21st, 1995?

MR. UELMEN: Same objection.

THE COURT: Overruled.

MS. STOCKDALE: I haven't.

MS. CLARK: You had no visits?

MS. STOCKDALE: No.

THE COURT: Wait, wait, wait. Let's move on to something else. Has to do with the location of the tape, where it went, whose got it. Was this tape ever returned to you by Mr. Pavelic?

MS. STOCKDALE: No, it wasn't.

THE COURT: All right.

MS. CLARK: Okay. Did you play the tape for Mr. Pavelic?

MS. STOCKDALE: No, I didn't. He brought a tape recorder along, but it was a microcassette. And as I stated, it was on a regular size tape recorder. So he took it with him.

MS. CLARK: Now, you were interviewed by a reporter from the New York daily news, correct?

MS. STOCKDALE: That's incorrect.

MS. CLARK: You were not interviewed?

MS. STOCKDALE: No. I was never interviewed.

MS. CLARK: You did not have any conversation then with Michelle Caruso of the Daily News?

MS. STOCKDALE: Absolutely not.

MS. CLARK: Did you ever play that tape recording for anyone?

MS. STOCKDALE: No, I certainly did not.

MS. CLARK: You didn't play it for Michelle Caruso of the daily news?

MS. STOCKDALE: No.

MS. CLARK: Did you play it for any of your friends?

MS. STOCKDALE: No, I didn't.

MS. CLARK: Did you play it for any members of the Defense team?

MS. STOCKDALE: I didn't personally play it. I don't know what Mr. Pavelic did, but I didn't.

MS. CLARK: What about the--why did you make the additional copy after you gave the first copy to Mr. Pavelic?

MS. STOCKDALE: I didn't make it afterwards. I made it at the same time I requested the copy from the voice mail.

MS. CLARK: Okay. And why did you make that extra copy?

MS. STOCKDALE: In case the one from the voice mail got lost or it didn't work or I didn't get it, I would still have one.

MS. CLARK: Okay. And you did not give that extra copy to Mr. Pavelic?

MS. STOCKDALE: No.

MS. CLARK: Do you recall being--when you were interviewed by Dana Thompson from the D.A.'s office on June 21st, 1995, do you recall telling him about that second copy, the copy you made yourself from the telephone?

MS. STOCKDALE: No. He didn't ask me if there was a second copy.

MS. CLARK: Okay. Would you do me a favor, please, and review this statement here.

MS. STOCKDALE: Okay.

MS. CLARK: That is a report of your conversation with Dana Thompson, and tell us if the information contained in that is accurate.

MS. STOCKDALE: (The witness complies.) It's incorrect.

MS. CLARK: And in what respect is that?

MS. STOCKDALE: The portion of the sentence that says "And gave him her only copy of the above tape." He just asked me if I gave a copy.

MS. CLARK: All right. And in this interview report, it states that you told him on June 21st, 1995, that you gave Mr. Pavelic the only copy of that tape in September of 1994. That's what it states here; is that correct?

MS. STOCKDALE: That's what it states.

MS. CLARK: And your testimony now is that that's incorrect?

MS. STOCKDALE: Correct. That's incorrect.

MS. CLARK: Okay. Now, do you also recall that you, through your lawyer, demanded a retraction of a portion of the story that was run in the U.S. Daily News concerning this tape?

MS. STOCKDALE: Yes. That is why I initially retained legal counsel, is because I wanted formal papers filed demanding a retraction that I was trying to sell this tape, absolutely a false assertion.

MS. CLARK: Okay. And that portion of the article that asserted that you were trying to sell this tape was in fact retracted at your request, correct?

MS. STOCKDALE: You bet it was.

MS. CLARK: Okay. But the rest of the article which details the quotation that I've read to you, you did not demand a retraction as to that, correct?

MS. STOCKDALE: No, I didn't.

MS. CLARK: And I'm going to ask you to review what's highlighted here. It shows the date, the time and the substance of the conversation that was recorded, and ask if that is correct and accurate to the best of your recollection.

MS. STOCKDALE: It's close to what I remember.

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: And the Court has already elicited the statement as to what the name of the service is?

THE COURT: You know, most of these voice mail systems are actually computer disks. Digital.

MS. CLARK: Yeah, we hope.

MS. CLARK: That seems to be an actual rendition to you?

MS. STOCKDALE: Yeah. As I said, I don't remember word for word what it said.

MS. CLARK: Okay. And then it's your testimony how--

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Can you remember at this time who it was that you asked at your answering service, the name of the person you spoke to when you asked for a copy of the tape?

MS. STOCKDALE: Yes.

MS. CLARK: Shall we say that--can you tell us?

MS. STOCKDALE: His name is Bruce Humiston.

MS. CLARK: Can you spell the last name?

MS. STOCKDALE: I'm speculating. H-U-M-I-S-T-O-N.

MS. CLARK: Okay. Well, we'll look for something close. Did--when was it that it came to your attention that the other copy that you kept was no longer useful?

MS. STOCKDALE: After I recorded over it.

MS. CLARK: And when did that happen?

MS. STOCKDALE: Oh, several months ago. March, April.

MS. CLARK: March, April of this year?

MS. STOCKDALE: Yes.

MS. CLARK: Okay. And did you--when you were recording over it, did you know that you were recording over it?

MS. STOCKDALE: Yes.

MS. CLARK: Okay. You intentionally did that?

MS. STOCKDALE: Yes. It was no longer of any importance to me.

MS. CLARK: Okay. Did you check with anyone on the Defense team before you did that to make sure that it would be okay to erase it basically?

MS. STOCKDALE: No.

MS. CLARK: Did you inform anyone on the Defense team that you had done so?

MS. STOCKDALE: No. Not at the time I did it.

MS. CLARK: When was the first time you informed anyone that you had erased that other copy?

MS. STOCKDALE: The first time I told anyone?

MS. CLARK: Yeah.

MS. STOCKDALE: When the issue arose in the New York daily news when I was speaking with my lawyers.

MS. CLARK: Okay. And that was back in May of 1995?

MS. STOCKDALE: Yes.

MS. CLARK: May I have a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MS. CLARK: Nothing further.

THE COURT: Mr. Uelmen.

MR. UELMEN: Thank you.

CROSS-EXAMINATION BY MR. UELMEN

MR. UELMEN: Miss Stockdale, the copy of the message that you made yourself, was that before or after you received the copy from your answering service?

MS. STOCKDALE: Before I received the copy.

MR. UELMEN: All right. So initially, you just held a tape recorder up to the telephone and made a copy yourself?

MS. STOCKDALE: Yes.

MR. UELMEN: All right. And then later, the answering service sent you another taped copy of the message?

MS. STOCKDALE: That's correct.

MR. UELMEN: Now, do you recall which of those two you gave to Mr. Pavelic?

MS. STOCKDALE: I believe it was the one I received from the voice mail service.

MR. UELMEN: The one you kept then was the one you made yourself?

MS. STOCKDALE: Yes.

MR. UELMEN: Now, you didn't tell Mr. Pavelic when you gave him a taped cassette that it was your only copy of the message, did you?

MS. STOCKDALE: No. I didn't tell him it was my only copy.

MR. UELMEN: And when you were interviewed by the District Attorney in June of this year, you did not tell them that you gave Mr. Pavelic your only copy?

MS. STOCKDALE: No, I did not.

MR. UELMEN: Now, you gave the copy of the tape to Mr. Pavelic in September?

MS. STOCKDALE: That's the best--to the best of my recollection.

MR. UELMEN: And to the best of your recollection, is that--the copy that you kept was not erased until March or April?

MS. STOCKDALE: Yes.

MR. UELMEN: So then after you gave Mr. Pavelic a copy, you still had a copy for approximately five months?

MS. STOCKDALE: Yes.

MR. UELMEN: Now, did Mr. Pavelic at some time call and inform you that you were not going to be called as a witness by the Defense?

MS. STOCKDALE: Yes, he did.

MR. UELMEN: Was that before or after you taped over your copy?

MS. STOCKDALE: That was before I--that was sometime before.

MR. UELMEN: So you were aware then when you taped over it in March or April that the Defense had decided not to call you as a witness?

MS. STOCKDALE: That's correct.

MR. UELMEN: And did you ever request that Mr. Pavelic return the copy of the tape that you had given to him?

MS. STOCKDALE: No, I didn't

MR. UELMEN: Nothing further.

THE COURT: Miss Clark.

MS. CLARK: One question.

REDIRECT EXAMINATION BY MS. CLARK

MS. CLARK: In September, when you first met with Mr. Pavelic and gave him this tape, did you discuss the subject of how many copies there were with him?

MS. STOCKDALE: I can't recall.

MS. CLARK: Do you recall him asking you if that was the only copy?

MS. STOCKDALE: Yes, he did.

MS. CLARK: And do you recall what you told him?

MS. STOCKDALE: I told him that no, it wasn't the only copy.

MS. CLARK: And did he ask you what you had done with the other copy?

MS. STOCKDALE: No.

MS. CLARK: Did he ask you not to give it to anyone?

MS. STOCKDALE: No.

MS. CLARK: Did he ask you to maintain it or keep it preserved in some fashion?

MS. STOCKDALE: No.

MS. CLARK: Did he tell you what he intended to do with his?

MS. STOCKDALE: No, he didn't other than take it that day and pass it along.

MS. CLARK: And is it your testimony that you erased it in March or April because he told you you were not going to be called as a witness?

MS. STOCKDALE: No. Because he had told me long time before that. I just--I taped over it because I needed a tape.

MS. CLARK: So it just happened that it was in March or April of `95?

MS. STOCKDALE: Right.

MS. CLARK: Okay. Nothing further.

THE COURT: Miss Stockdale, do you still have the tape, physically the tape itself that you taped over?

MS. STOCKDALE: I believe I do. I've been looking for it.

THE COURT: You've been looking for it, but you haven't found it?

MS. STOCKDALE: Yes.

THE COURT: All right. Do you know how many times you've taped over that tape?

MS. STOCKDALE: Couple times.

THE COURT: It makes it a little more difficult. All right. Do you have any objection to--if prestige voice mail still has the original message on their information systems there, do you have any objection to the parties getting a copy of that phone message?

MS. STOCKDALE: No.

THE COURT: All right. Do you have any idea how a New York newspaper wound up--

MS. STOCKDALE: That's a mystery to me.

THE COURT: All right. All right. Thank you very much, Miss Stockdale.

MS. STOCKDALE: Thank you.

THE COURT: All right. Mr. Nolan, thank you.

MR. NOLAN: Your Honor, with respect to the authorization to seek her messages from prestige, that authority would only go to that one message?

THE COURT: That's correct.

MR. NOLAN: Thank you.

THE COURT: All right. Anything else, counsel?

MR. YOCHELSON: In the event there is further services required of Miss Stockdale, will counsel accept service on her behalf?

MR. NOLAN: We'll accept it. We'll accept service.

THE COURT: All right. Thank you, counsel.

MR. UELMEN: Does your Honor wish to hear further argument on the issue?

THE COURT: Yes. And at this point, I think we need to discuss also the 1054.7 issues with regards to this tape. All right. Miss Clark, anything else you want to add to the record with regard to Miss Stockdale?

MS. CLARK: Well, factually speaking, perhaps we need to--we have a conflict here and maybe what we need to do is call Dana Thompson unless--I don't think it matters actually.

THE COURT: Well, the issue was whether or not Miss Stockdale had a copy that was still available. She's indicated that she taped over the tape a number of times. So in all likelihood, it's not recoverable except for perhaps by the NSA, and I don't think they're going to help us with this.

MS. CLARK: I certainly doubt it, your Honor. And that was back in March or April `95 before we could have known.

THE COURT: Right. Now, have you made inquiry of this phone voice mail service whether or not their database still includes this, because you've gotten authorization from her to get the original from the digital format.

MS. CLARK: This is the first we've heard of it. So we will do so.

THE COURT: All right.

MS. CLARK: Does the Court want us to make that effort to get that before we resume with argument on this issue?

THE COURT: The Defense previously under 1054.7 filed affidavits regarding this particular tape. And, Mrs. Robertson, we'll need to get that sealed package. All right. But I do think that you ought to--at this point, I'm going to direct you to contact the voice mail service and see if the database from that date is still available.

MS. CLARK: The People would make a motion then for those 1054.7 materials though to be discovered at this time as well.

THE COURT: All right. I'll take that matter under submission. All right. But I'm going to direct you to contact the voice mail system this afternoon. And Bruce Humiston was the name?

MS. CLARK: Humiston.

THE COURT: Humiston.

MS. CLARK: And then we'll revisit?

THE COURT: We'll see where we are at that point.

MR. UELMEN: The 1054.7 submission, your Honor, was to preserve the Defendant's work product privilege. We don't believe that they're entitled to see that, but the only theory under which there's any duty at all to turn this over would not arise under 1054, but under the Meredith case. And that's whether we have foreclosed access by the Prosecution by taking physical possession of--

THE COURT: Which is why I'm directing--I'm putting them on notice that that exists, that it's still in sealed condition. I'm directing them to go to the original source at this point.

MR. UELMEN: Right.

MS. CLARK: We have no dispute of Meredith controlling on this issue.

MR. UELMEN: Well, we contend Meredith doesn't apply because it's not inculpatory evidence and because we have not foreclosed access. So for both of those reasons.

MS. CLARK: We already framed this for the Court.

THE COURT: It may become a nonissue later today.

MS. CLARK: Yeah.

THE COURT: All right. Anything else we need to wrestle with this afternoon? All right. Then we'll stand in recess until 9 o'clock tomorrow morning with regards to the IAD issue and finding of materiality after the city attorney's office--after the Defense files its declaration of materiality, the Court will hear orally any argument that the city attorney's office has, I'll hear comment from the District Attorney's office as well and then I'll hopefully be able to make a ruling on the prima facie materiality issue at that point.

MS. CLARK: Just as to the IAD?

THE COURT: Right. Well, this is the whole issue though. It's--that's one small part of a larger issue, because I mean, that issue includes, you know, Dr. Rieders, it includes MacDonell, i mean, it's the whole issue of blood on the socks is what the issue is. And then i think the defense should be prepared to go forward with its next witness at 1 o'clock tomorrow afternoon.

MR. COCHRAN: 1 o'clock?

THE COURT: 1 o'clock tomorrow afternoon.

MR. COCHRAN: We're going to do the best we can. We may not have enough for the entire afternoon.

THE COURT: Well, make your best efforts.

MR. COCHRAN: I will, your Honor.

THE COURT: All right. Anything else?

MS. CLARK: No.

THE COURT: All right. We'll stand in recess. Thank you, counsel.

(At 3:55 P.M., an adjournment was taken until, Wednesday, August 9, 1995, 9:00 A.M.)

LOS ANGELES, CALIFORNIA; WEDNESDAY, AUGUST 9, 1995 9:06 A.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted; also appearing, Arthur Walsh and Mary Thornton house, assistant city attorneys.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel, Mr. Uelmen. The People--and Mr. Douglas. The People are represented by Mr. Kelberg, Mr. Goldberg. And also present is Arthur Walsh from the city attorney's office, and I'm sorry, counsel--

MR. WALSH: Good morning, your Honor. With me today is Mary Thornton house, assistant city attorney. Miss house is going to be covering for me in the next couple of weeks while I am on vacation in case issues arise.

THE COURT: All right. Thank you, counsel. We are here for a hearing on the showing of materiality on a subpoena request for certain documents alleged to be in the custody of the Los Angeles Police Department. And the issue that has been left for this Court to determine is whether there has been an adequate showing of materiality to justify the request. The Court has received this morning a declaration by counsel, Mr. Uelmen, which is four pages in length, which the Court has read and considered. Mr. Uelmen, I will hear any additional comments that you may have.

MR. UELMEN: Your Honor, in the declaration we have attempted to summarize all of the evidence, most of which is already in the record, with respect to the issues that we believe this report is material to, and those issues include whether the criminal investigation of these murders was an objective search for the truth or whether it was a rush to judgment in which only evidence that supported a preconceived conclusion of Mr. Simpson's guilt was actually pursued; whether evidence in this case was deliberately tampered with or manufactured. And we believe that a strong inference of such activity would arise if LAPD officers or personnel were confidently leaking results of DNA tests that had not yet been conducted. Thirdly, whether leaks by the LAPD were an attempt to obstruct justice by influencing potential jurors at the time that jury selection in this case was proceeding. Fourthly, whether any witness in this case testified falsely by denying complicity in either a conspiracy to frame Mr. Simpson or a cover-up of misconduct by other members of the Los Angeles Police Department. And finally, whether unauthorized persons had access to the test results to leak them. We believe it is a fair inference that if unauthorized persons had access to confidential reports summarizing test results, then they may well have also had access to the evidence itself and could have tampered with it, since we are told the reports and the evidence were being kept in the same location. I would also ask that--

THE COURT: Where in the record does it show that the evidence and the reports were kept in the same place?

MR. UELMEN: The faxes to SID that also were leaked and appeared in the Los Angeles times before they went to the Prosecution and the Defense had been faxed directly to the SID laboratory to Michele Kestler. So you know, if there is some--if there is some argument that some--and this argument has been made by Mr. Goldberg--that this could have been an interloper, if interlopers had access to the SID laboratory for this purpose, there is an inference that they may have had access for other purposes as well. We of course would contend that all of these issues are essentially the same issues as to which the testimony of Tracie Savage and Joe Bosco would be relevant. And in light of the crossover really between this motion and the motion with respect to piercing the newspaper shield law, would ask that this declaration also be considered for that purpose, for purpose of the newspaper shield law motion. And in terms of crossover, if the Court does have an opportunity to examine the Internal Affairs report, that report should also be considered for whatever relevance it may have to the reporter shield law issue in terms of alternative sources.

THE COURT: All right. Thank you, Mr. Uelmen. Mr. Walsh.

MR. WALSH: Thank you, your Honor.

THE COURT: Good morning.

MR. WALSH: I am not at all familiar with the facts of this case and so I accept the representations of Mr. Uelmen regarding the facts as being correct. I have no reason to doubt them. Certainly lays out a lot of facts regarding evidence and reports to the press. What is noticeably missing from this declaration, however, is anything that ties those facts to the Defense's desire to find out what Internal Affairs may have learned when it looked into those leaks, assuming that it did. There is no demonstration that anything regarding Los Angeles Police Department or the source of the leaks has any materiality to the issues which I believe are present in this case. I find the format followed in the declaration to be significant of the logical gaps. After making a series of direct factual statements, Mr. Uelmen concludes his four-page declaration by posing five questions. Did this investigation support a preconceived conclusion? Was evidence planted? Were the attempts to influence? I don't know the answer to that. Apparently not only does the Defense not know the answer to that, but they don't even have a good faith belief in what those answers might be because they do not articulate that they have a good faith belief that any member of the Los Angeles Police Department in fact was responsible for the leak or in fact had some nefarious motive for being involved in leaking this. And this is what is absolutely missing from this and what that is necessary for is to show materiality between what might be contained in the Internal Affairs report and the theories of the case being presented by the Defense. One of the major cases on the issue of materiality is the memro opinion--I don't have that citation in front of me--but California Supreme Court case in which an individual sought discovery of police officer practices of abusing prisoners and coercing them into confessing and then covering up their illegal behavior. And in support of the request for discovery in that matter, the Defense attorney presented affidavits in which other criminal defendants reported having had similar events occur to them. And despite having presented this firm affidavit, the trial court declined to order discovery. Our Supreme Court said that there was more than enough presented in that case to demonstrate the materiality of the matters presented. In this declaration there is absolutely no suggestion that at any time any member of the Los Angeles Police Department in this case or any other case has engaged in leaking information for the purposes which apparently the Defense wants to put forward. Basically the Defense here is bootstrapping the fact that this is almost certainly the most publicized criminal case in modern history, a case which has drawn more media attention and been subjected to more media pressure than any case that anyone else has ever had any contact with. And having observed that, it is subjected to that kind of pressure, stated, well, this proves that LAPD must have some ulterior motive in being subjected to this pressure. If the Los Angeles Police Department in other murder cases and if the Los Angeles Police Department in other criminal investigations had developed even a bad reputation, a minor reputation for engaging in the kind of conduct that the Defense suggests occurred in this case, then perhaps there might be some justification. If the Defense alleged that the police department had pattern and practice of engaging in leaks and planting evidence and framing individuals, then there might be some justification for intruding into the confidential material here. All of that, however, is completely lacking from this declaration, and I would urge the Court to find therefore that it lacks the necessary materiality.

THE COURT: All right. Do the--does the District Attorney's office wish to be heard on this issue?

MR. GOLDBERG: Yes, your Honor.

THE COURT: All right. Mr. Goldberg.

MR. GOLDBERG: Good morning.

THE COURT: Good morning, counsel.

MR. GOLDBERG: I know we have discussed this on I think two prior occasions, the issue of materiality, so I will try not to repeat any of the previous arguments that we have made, both orally and in writing. But there are a couple additional comments that I would like to make in light of Mr. Uelmen's declaration. Basically the declaration I think can be divided up into two sections. The first one would be everything before the last page that has the outline of the questions a through E. The second one being those list of questions that Mr. Walsh discussed.

With respect to the first part of the declaration, your Honor, the People have not argued for the purposes of this motion that the Defense is not entitled to pursue the theory that the evidence on the socks or the socks themselves were planted. Obviously they are entitled to do that and they have been doing that. What we are questioning is whether or not the evidence that they would like to introduce in the--as to the alleged leak, if indeed it was a leak, has any probative value or any materiality as one of the fragments of evidence that they want to introduce for the purposes of making that showing. Therefore, I don't want to argue extensively about the parts of the declaration and what I have characterized as being the first part, except to point out just one thing, and that is that with respect to paragraphs 4, 5 and 6 of the declaration dealing with the circumstances under which the socks were collected, when Mr. Uelmen last addressed the Court on this issue, he specifically stated that the Defense was not claiming that the socks themselves were planted and therefore the issue about when specifically they were picked up did not go to the question of planting but went only to the issue of whether or not the socks were properly collected and properly documented, which should be more of an evidence collection issue. So they did appear to be mixing apples and oranges here and appear to be analytically imprecise with the Court in identifying exactly what facts go to which issues, because this fact does not go to the question of planting. And I would say that clearly the issue of the leak also does not go logically to the question of planting. So it is a question, your Honor, of identifying what are we trying to prove or what is the Defense trying to prove and does this piece of evidence in question have a tendency in reason to help them prove that? Now, in the second part of the declaration on the list of questions that that they articulated, A through E, I have divided those up into three categories. Category no. 1 is what they labeled as the rush to judgment. That is paragraph A. Then the second category I have is paragraph C which are the--the supposed efforts by the Los Angeles Police Department to obstruct justice. And then I have labeled everything else as argument no. 3 and that goes to the planting issue, and I would suggest that that is the only one that the Defense should be discussing at all, that the others are complete red herrings. First of all, as to the question of rush to judgment, we have stated, and I would just like to state one more time, I know that there has been some evidence that has been introduced, some questions along these lines, I don't know whether they were objected to by the People at the time, but the issue of the subjective reasoning processes of the Prosecution, including the Prosecutors themselves and the detectives, is entirely irrelevant. The whole issue of rush to judgment, if it refers to subjective reasoning processes of police and Prosecutors, is not a relevant admissible issue in and of itself. If it were, we would be entitled to testify, the Prosecutors in this case, as to why the case was filed, what our filing standards are, how we personally assess the evidence, or we would be able to call an expert witness like a police officer for the purposes of showing how a reasonable police officer would assess those kind of issues. That clearly is not admissible in any criminal trial. The issue is whether a jury, objectively viewing this evidence, believes that it is sufficient. Whether I think it is sufficient, whether Detective Vannatter thinks it is sufficient, is entirely irrelevant and inadmissible.

And I think the entire issue of rush to judgment in and of itself is not a real or legitimate issue; therefore, since that issue is not a legitimate one, any evidence that theoretically supports that issue is not admissible and is not material. Aside from that, I would suggest that the issue of the leak itself, even if we were to conclude that rush to judgment was a legitimate issue, doesn't really logically relate to it. How does the fact that someone has either negligently or intentionally released information relate to whether or not objectively they should have concluded that there was sufficient evidence to prosecute the Defendant in this case? The second argument that I would like to discuss that the Defense makes is this issue of paragraph C where they say that the leaks would evidence an attempt to obstruct justice by influencing potential jurors. At the heart of this argument, and in fact the heart of the third argument that the Defense makes on the planting issue, seems to be the assumption that a leak or a statement to the police--by the police to the press or by the Prosecution to the press, is somehow improper, which has been an unstated assumption that we have all made in all of our discussions to date. The fact is, is that under the California rules of ethics that apply to lawyers in our state, we don't have a provision dealing with communications by lawyers to the media. Therefore, if the lawyers themselves were to run out onto the courthouse steps and say, "Oh, there is great news, we have just found Nicole Simpson's blood on the socks," we would not have violated any ethical provisions in doing so. We would not have violated any court order because my understanding is that the Court never did employ any kind of a gag order. We would not have violated any rules of law in doing so. We would have only violated a custom that we have in our office of not engaging in that kind of an effort to try one's case in the media. But clearly the Defense, on a number of occasions, including with respect to the Mark Fuhrman issues that the Court will probably be shortly confronting, has repeatedly disclosed these kind of materials to the Defense--to the media and they have not violated any rules of ethics in doing so. I don't think that they would claim that they have done anything improper. So there is nothing, per se, improper under current California rules of ethics in making disclosures to the press, even though individual Prosecutors or individual Defense attorneys may feel that these kind of things should not be done. If the investigating officers did the same thing--I gave the Court a hypothetical where someone in the elevator was overhearing a discussion between Lange and Vannatter and then repeated that to the media and suggested that there is no conceivable theory of admissibility of that kind of disclosure, but let's say Lange and Vannatter themselves made the disclosure to the media, there might be individual police officers that would criticize that decision and say that it was improper, but still they would not have violated any rule of ethics, any rule of law.

THE COURT: Isn't that sort of implausible since Lange and Vannatter, given their experience as police officers, would know the difference between PGM subtyping and DNA results?

MR. GOLDBERG: I really don't know, your Honor. I mean, let's say--I mean, we have to discuss this thing almost on a hypothetical level because the Defense hasn't come forward with any specific concrete facts as to materiality. So let's assume that what happened is that they received a call from Mr. Matheson or Michele Kestler or both and they said, well, we have just done PCR--we have just done some genetic testing or testing for genetic markers on the socks, and according to our tests the PGM results would include Nicole Brown as being a contributor to the stain. And they interpreted that, well, PGM, DNA, it is both three initials, it is genetic markers, it is Nicole Brown, and immediately excitedly disclosed this to the press. I would suggest that although that would be perhaps a very curious set of circumstances and may be a careless set of circumstances, it wouldn't be a legally admissible set of circumstances, any more than the Defense disclosures to the press are admissible.

THE COURT: Well, that is a different issue, a different issue.

MR. GOLDBERG: What is a different issue?

THE COURT: The admissibility of that before the trier of fact versus a preliminary finding of materiality in a discovery issue.

MR. GOLDBERG: Well, would it be material? I would suggest it wouldn't be, even if it were by the investigating officers themselves. It is not material on the issue of an effort to obstruct justice and it is not material because there is no rule of law or ethics that had been violated under my hypothetical in making that disclosure, so it does not go to the issue of an effort to obstruct justice.

So the point that I'm making, your Honor, is I can't conceive of a scenario, even if it were the investigating officers themselves, where the evidence that the Defense seeks would be material on the issue of an effort to obstruct justice. It wouldn't be if the Prosecutors disclosed it or the investigating officers themselves, and certainly it wouldn't be if someone who was a police officer but not involved in the case made this disclosure. And then as to the third issue that they have discussed, what I have labeled as the third issue, being the issue of planting of evidence, in paragraph E they say that it is reasonable to infer that a person with access to the test results also had access to the socks. Well, first of all, what we are talking about is the PGM test results in this particular case. And the people that had access to those were the Prosecution, because we had been told of them, the investigating officers, the laboratory and we don't know who else, in addition to those people. We don't know for sure--can't reconstruct at this point in time whether that might have been told to the Defense attorneys orally. We certainly don't know what kind of individuals may have overheard that information, but it is a very wide circle of people that had access to that information. And clearly the Prosecutors did not have access to the socks. Detective Lange and Vannatter did not have access to the socks. There are no uniform members of the police department that had access to the socks, so this is just plain false. But as has been repeatedly argued by the People and by Mr. Walsh, there is no logical connection between the idea of the so-called leak and the issue of evidence planting. I think it is what logicians call a fallacy of the assumed premise and that is that what they have said is there is a leak; therefore, it is more likely that evidence was planted on the socks. But in order to make that argument, you have to show a logical connection between the two or a nexus between the two, if you will, and that nexus is entirely absent because why would someone, if we were to infer it was someone who had access to the socks that leaked this information, why would that person, knowing that there had been evidence planted on the socks, then not only want to leak information to that effect, but leak it incorrectly and therefore perhaps undermine any probative value that that evidence would have subsequently, to the extent that--that the public learned that information that was incorrect, was being leaked by the Los Angeles Police Department. It simply doesn't make any sense that someone who had planted the evidence on the socks themselves or had knowledge of it would want to do that. And clearly if the person that is responsible is not an individual with access to the socks, then there is no conceivable argument showing a nexus between the so-called leak and evidence planting. So if the Court is very systematic in going through point per point the three arguments that the Defense has made as to materiality, in this systematic way I think the Court should conclude and will conclude that there is no materiality to the question of the so-called leaks in this case, that it does not prove any fact that the Defense is entitled to prove in this case. Thank you.

THE COURT: Mr. Uelmen. I'm particularly interested in the last point that Mr. Goldberg makes, that access to results does hot necessarily imply access to the evidence itself and his implied argument that the access to the results here is not--not proven.

MR. UELMEN: Right.

THE COURT: Because the misinformation that was disseminated, rather than the accurate information, would indicate to an objective person that the person didn't have access to the results.

MR. UELMEN: Let me address that issue first then, because the suggestion that the report of the investigation into the leaks would be material in this respect is really an alternative argument. What we are suggesting, your Honor, is that the--the evidence of where the leak came from is going to be relevant and material in either alternative. If the leak came from the LAPD, it is going to be material to the evidence we have already presented in this case of the planting of evidence. I mean, we are not dealing with--with remarkable coincidence. We are dealing with the concurrence of two events that we believe there is a very strong inference of a relationship between those events. One, the appearance of bloodstains on the socks long after they were collected and the first results of the testing of those socks, and at the same time, the appearance in the press of accounts of tests of those socks that had not yet been conducted. So if we link the leak to the LAPD, I think we have a very strong inference that these two events are related, but alternatively--

THE COURT: Let me ask you this question: When you say we "Link" this to the LAPD, I mean are we talking about some p-ii in the elevator who happens to overhear a conversation and that establishes a substantial link to the LAPD?

MR. UELMEN: Well, that--

THE COURT: Are we talking about somebody who is involved in the investigation?

MR. UELMEN: Okay.

THE COURT: And had access--

MR. UELMEN: And my answer to that is either way; either way. If it goes directly to people who are involved in the investigation, we have a very strong inference of direct evidence planting.

THE COURT: But doesn't the evidence show the contrary?

MR. UELMEN: Well, if it did, if it did, we have a real problem in terms of security and chain of custody. I mean, what we are saying is even if we don't link this to people directly involved in the investigation, the mere fact that a p-ii in the elevator gets access to test results suggests that the kind of security that the Prosecution would believe has enveloped this evidence and protected it and maintained its--its sanctity and purity is not believable because a p-ii in the elevator can walk into the SID and get test results. And that is--

THE COURT: No, that wasn't the point I was making.

MR. UELMEN: Well, what I'm suggesting, your Honor, is that there is--there is an alternative here, and either way that it comes out, we have material, relevant evidence that the jury is entitled to hear. On the one hand, if it is linked directly to LAPD officers or laboratory technicians who were involved in the investigation of this case, or if it turns out the leaks came from some unauthorized person who got access to this information from the LAPD. Either way, we believe it is material and that is the precise point. The question of the issue that Mr. Goldberg suggests mixes apples and oranges, for example, the question of the actual collection of the sock, goes right to the point of the issue of the security with which this evidence was maintained. That is, if we can't even trust the accounts of the criminalists who collected the evidence, if we can't trust the records they maintained as to when that evidence was picked up, then how can we believe the evidence that they are presenting with respect to the security with which this evidence was maintained? We are dealing essentially with a--with a chain of custody issue here in terms of whether the evidence is even credible that this evidence was protected and secured against tampering by unauthorized persons, and that is the relevance. And it ties directly to the issue of whether there has been evidence tampering. The fact that this very same evidence, whose integrity is being questioned, was sloppily handled from start to finish, and that is the relevance of the circumstances regarding when the socks were picked up. I want to respond very briefly to Mr. Walsh's points. Essentially he is criticizing the affidavit because it doesn't come to a conclusion about what we believe these records will ultimately show, and that is of course because we haven't seen the records. The issue of materiality simply goes to whether there is a likelihood that in these records there will be relevant evidence to issues that we are litigating in this case. I think the affidavit amply shows that in the evidence already presented to this jury we have ample materiality and relevance to the question of where the leaks came from. The question of where the leaks came from relates directly to the issues we are already litigating and have already presented to the jury in terms of evidence tampering in this case. He says there is nowhere in this affidavit any suggestion that an LAPD officer was responsible for any leaks, and I would call his attention to paragraph 16 which recounts the testimony of Mr. Bosco.

THE COURT: Bosco did not identify the individual as an LAPD officer.

MR. UELMEN: I believe his published report indicated that it was an LAPD officer.

THE COURT: No, it does not.

MR. UELMEN: Well, I hope I'm not overstating that.

THE COURT: A police officer or a--I think it says a police officer. It does not identify him as an LAPD officer.

MR. UELMEN: A police officer as opposed to an officer of the Los Angeles Police Department. Well, I think it is a very fair inference that officers of the Inglewood Police Department or the Beverly Hills Police Department weren't passing out lab results, that the--the police officer in question logically and inferentially would have been an officer of the Los Angeles Police Department that was conducting this investigation, especially in the context of the report which talks about the history.

THE COURT: All right. Well, Mr. Uelmen, let me ask you this, though: The bottom line here is whether or not the leaking of misinformation implies evidence tampering. That is the bottom line issue. And--

MR. UELMEN: Well, we believe it is broader than that. That even the leaking of prior information, other than just this one false report of results, is also relevant to the questions that we are addressing, the questions of the rush to judgment, the questions of attempting to influence the outcome of the case by--by leaking results. And Mr. Goldberg I think really misconceives the thrust of that argument. If lawyers or police officers went out on the--on the courthouse steps and passed out this information publicly, they could be held accountable. They would--would then accept responsibility for what they were doing. And accepting responsibility for what you are doing means accepting the consequences of what you are doing. For example, the Los Angeles Police Department accepted the responsibility for distributing the 911 tapes at the time that the grand jury was still considering whether to return an indictment in this case. It was, I believe, directly as a result of showing that responsibility, of showing that that leak came from the Los Angeles Police Department and was responsible for--

THE COURT: It wasn't really a leak. It was done aboveboard. There was nothing surreptitious about it.

MR. UELMEN: Exactly, exactly, and for that reason we were able to the point to the Los Angeles Police Department and to say a climate is being created by the Prosecution in this case and by the investigating officers that prejudices the fair consideration of this case by the grand jury. That is precisely what we want to say to this jury and to this Court in this trial, that the responsibility of the Los Angeles Police Department for leaking this information was designed to create a climate that would prejudice Mr. Simpson. That is relevant evidence with respect to the weakness of their case, if they accept responsibility for it. But the problem is we are talking here about surreptitious leaking. We are not talking about going out on the front steps of the courtroom (Sic).

We are talking about passing out test results out the back door. And what we are trying to get at in this case is who is responsible for that, and that is an issue that we are entitled to present to this jury if we can show that the Los Angeles Police Department is responsible for that. And that is precisely what the materiality of this report is, to help us resolve that question. With respect to the question of the--of the rush to judgment, that goes directly to the motive to plant evidence in this case, and has already been the subject of testimony from numerous witnesses, including Detective Vannatter and Lange, with respect to how this investigation was conducted. And we are certainly entitled to counter that evidence with--with evidence that there was leaking activity going on in order to support a preconceived result in this case. So we would contend, no matter how we cut it, if--if the leaking of this information can be attributed to officers of the Los Angeles Police Department or laboratory personnel who were involved in this case, it is strong corroborative evidence of what we have already presented with respect to the planting of evidence, the manufacturing of evidence, and the lack of integrity of the evidence in terms of the security that was maintained over that evidence. Alternatively, if where it leads us is to show that some unauthorized person, some elevator operator or whoever was responsible for the leak, it goes directly to that security issue, to the chain of custody issue and to raising questions about whether in fact the evidence was maintained as securely as the Prosecution would have us believe in terms of the unauthorized access of other persons to testing results.

THE COURT: Doesn't elevator gossip--isn't that a big leap to the security of the actual physical maintenance of the evidence?

MR. UELMEN: I don't believe it is that big a leap. I think it is a fair inference that if the Los Angeles Police Department, besides being a cesspool of the contamination in their laboratory, is also a cesspool of gossip in which an investigation is conducted in a way that this kind of information is readily available to anyone in the building, then that says a heck of a lot about the risks that we are talking about in this case that persons who should not have access to information and evidence did have such access.

THE COURT: All right. Thank you, counsel.

MR. WALSH: Your Honor, if I might, I have the cite to that case that I gave you earlier.

THE COURT: Memro?

MR. WALSH: People versus Memro, 38 cal.3D 658.

THE COURT: I am familiar with the case. All right. What we have heard--

MR. GOLDBERG: Your Honor, may I be heard briefly in response? Well--

THE COURT: If it is absolutely necessary.

MR. GOLDBERG: Not that it is.

THE COURT: I have heard your comment on this particular issue twice.

MR. GOLDBERG: I know, but actually more than twice, this is the third time, but counsel did articulate a couple new theories. I did want to respond to them. If the Court completely feels it is unnecessary, I won't.

THE COURT: It is up to you. You are the advocate for your side. If you feel it is absolutely necessary--

MR. GOLDBERG: I would just like to respond very briefly. I think that it is very difficult for Mr. Uelmen to precisely articulate any theory of admissibility. He seems to offer two new ones.

THE COURT: It is not an issue of admissibility. This is a preliminary discovery issue.

MR. GOLDBERG: Materiality. One is the issue of security, and I think as the Court's comments showed or the Court's questions showed, there is no logical connection or would be no logical connection between two detectives whispering conversations about the PGM results that were overheard by a uniform detective in an elevator and the security of the physical evidence itself. And I don't think they articulate any logical theory of connection. The second new theory that he articulated was that somehow any leaking would be relevant in and of itself, whether it is surreptitious or not, if I'm understanding what he is saying. Well, that would make the 911 tape information admissible, and I think he is saying that it would be admissible even though it was done entirely aboveboard pursuant to a request for information by the press. But that would also make the Defense leaks admissible as well, if you want to call them that--I'm not sure that that is the correct terminology--and we try this case by introducing evidence as to the respective sides' communications with the press and any inferences that could be drawn from that in terms of the effect that we wanted that to have on the public, and that just is not a proper way of trying a case. He also seems to suggest that if any police officer in the whole entire police department has done anything to evidence any sort of a preconception or ill will towards the Defendant in releasing information, that that in and of itself is relevant, but that would make it relevant if some--some officer, when he is passing out traffic tickets, is telling people, well, you know, by the way, I also think Mr. Simpson is guilty and there is a lot of evidence against him. I simply don't believe there is any logical connection between a person in a police department who is not connected with this case passing out information in any issue that is material before this jury.

MR. UELMEN: Just a very brief point. If we had evidence that the 911 tapes had been doctored or altered in some way, that voices had been planted on the tape, then perhaps the release of those tapes shortly after those alterations appeared would be relevant and we would be arguing that--that the release of those--of those tapes was evidence of many of the inferences that we are suggesting here. And that is precisely the point, that these socks, the evidence we have already presented, may have been altered very shortly before the release of this information and the first test of the blood that was not observed on those socks until three weeks after they were seized were conducted one day before this leak took place. And the fact that a leak appears at that time and in that manner with respect to this evidence goes precisely to the question of materiality.

THE COURT: All right. Thank you, counsel. All right. What the Court has before it essentially are two issues of materiality: One with regards to the good cause to issue a subpoena duces tecum for the production of documents, and secondly, whether or not sufficient materiality exists to compel Mr. Bosco and Miss Savage to reveal the sources of their information. Both of these are in the nature of a preliminary finding regarding discovery, and what is required is that a party show a reasonable possibility that the information will materially assist in their case. The primary contention that the Defense makes is that the blood of Nicole Brown Simpson was planted upon LAPD item 13, which was the sock recovered from the Defendant's Rockingham residence master bedroom. There is the further argument that the source of this blood on the sock was the reference sample obtained by the Coroner's office. The record reflects that Detective Adalberto Luper directed the recovery of the socks, item 13, from the bedroom of Mr. Simpson because the socks looked out of place. He did not make any observations regarding the presence of blood. Criminalist Fung and Mazzola, working as a team collecting the items from the upstairs bedroom area, they collected items, including the socks, and at that time did not notice the presence of bloodstains. LAPD SID personnel Kestler, Matheson and Yamauchi, on or about the 29th of June, conducted an inventory of the evidence items during the course of the preliminary hearing and at that time no bloodstains were noted on the socks. The Court has before it the partial testimony of Dr. Fredric Rieders. Dr. Rieders has conducted an analysis of FBI Special Agent Roger Martz' testing of various bloodstain items, including the sock, item 13, and it has been the testimony of Dr. Rieders on direct testimony by the Defense that the results obtained by special agent Martz are consistent with the presence of EDTA on the sock. Herbert MacDonell, who testified for the Defense as a blood pattern expert, indicated that his microscopic examination of the sock indicated that the blood on the sock was applied in a compression manner, that the sock had soaked through from the left--excuse me--the blood had soaked through the sock from the left exterior at the ankle area into the right interior which led him to the opinion that the blood was applied while the sock was lying on a flat surface. Now, what transpired on or about September 21st was a news report, primarily on KNBC, channel 4, locally here, that certain test results, DNA test results, both PCR and RFLP, had been conducted on the sock and had come back with a genetic match for Nicole Brown Simpson. And the record also demonstrates that that information was incorrect. Miss Savage testified here, before invoking the news media shield, that the source of her information was, quote, knowledgeable and, quote, close to the investigation. Mr. Bosco testified that the information contained in his penthouse article in the June, 1995, issue, was a correct reporting of the incidents that he related and specifically at the page citation that he gave to us. He indicated that a police officer who had previously given mostly good information and had provided that information with corroboration was going around with information indicating this DNA match, and that Mr. Bosco, because no corroboration was offered, declined to follow up on that. Mr. Bosco's article also indicates that this information was provided to and rejected by numerous journalists. This leads to the argument that access to results also implies access to the evidence. This record does not support a finding that access to the results means access to the evidence itself. That assumes that access to the results does exist in this case. And the mere fact that the results as reported were incorrect is a clear indication to this Court that the source of this leak did not have access to that information and did not--was not a source close to the investigation and was not in fact knowledgeable. The Delaney case requires that the materiality or the offer or the argument in support of materiality cannot be mere speculation. And I think that the record in its totality here, the Court having considered the entire record, does not support a finding of materiality. All right. We will stand in recess until one o'clock.

MR. KELBERG: Your Honor, could I just be heard briefly--

THE COURT: Mr. Kelberg.

MR. KELBERG: --on an unrelated matter? I asked Mr. Douglas--the Court will recall yesterday that the Court ordered Mr. Shapiro to turn over this morning any notes of either Dr. Baden or Dr. Wolf if they were intended as witnesses in the case and also to present exhibits that have not previously been marked so that I could review them. I came down in hopes of seeing Mr. Shapiro and having access to any such notes. Not seeing him, I asked Mr. Douglas what the situation was, if Mr. Shapiro was going to be attending this morning and so forth. I don't know what the results of Mr. Douglas' efforts were, if any, of ascertaining what that information is, but needless to say, I would like compliance with the Court's order and I know of no other way to make the request.

THE COURT: All right. Let me direct you then to call Mr. Shapiro's office as soon as we take our recess. If we need to, we will take the matter up at one o'clock.

MR. KELBERG: Thank you, your Honor.

MR. DOUGLAS: I have done it, your Honor. Can we approach on that matter?

THE COURT: Sure.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: Mr. Douglas.

MR. DOUGLAS: Thank you again, your Honor. Your Honor, I have just been on the phone with Mr. Cochran. We had expected that there would be one witness available to call this afternoon. Decisions have been made and that witness will not be called. Our next witness is a Coroner witness who will be available tomorrow morning. If the Court please, I would ask that we be allowed to recess the rest of the day and to begin with our next witness at nine o'clock in the morning.

THE COURT: All right. Mr. Kelberg?

MR. KELBERG: Your Honor, my response--just I want a clarification from Mr. Douglas, if he would, please, the person who we were notified last night was to be called at one o'clock this afternoon is not going to be called tomorrow; is that correct?

MR. DOUGLAS: That's correct.

MR. KELBERG: And the second thing would be Mr. Douglas has indicated he has tried to reach Mr. Shapiro on the notes and so forth. I'm going to give Mr. Douglas a number where I can be reached today. I would like to know--as soon as those notes and those exhibits are here, I will come down to court and look at them. Just for the record, if I don't see those notes pursuant to the Court's order, I will make a motion tomorrow with respect to Dr. Baden that witness preclusion is the proper remedy, so everybody knows where I'm coming from. I assume Mr. Douglas will communicate that to Mr. Shapiro.

THE COURT: The Court's order yesterday was clear, I thought.

MR. KELBERG: I thought so, too, your Honor.

MR. DOUGLAS: I will make the call, your Honor.

MR. KELBERG: Thank you, your Honor.

THE COURT: Then based upon that representation, we will stand in recess until 9:00 A.M. tomorrow morning. All right.

(At 10:00 A.M. an adjournment was taken until, Thursday, August 10, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California,)

Plaintiff,)

Vs.) No. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Tuesday, August 8, 1995 Wednesday, August 9, 1995

Volume 202 pages 40741 through 40971, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

ALSO PRESENT: Arthur Walsh and Mary Thornton house, deputy city attorneys John S. Schuster, Esquire Thomas J. Nolan, Esquire

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I N D E X

Index for volume 202 pages 40741 - 40971

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Day date session page vol.

Tuesday August 8, 1995 A.M. 40443 202 P.M. 40851 202

Wednesday August 9, 1995 A.M. 40934 202

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PROCEEDINGS

Motion re materiality of subpoena re 40934 202 LAPD Internal Affairs Division

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Speed, Terence 40745rh 40814n 40818rh 202 (Further) 40824n

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PEOPLE'S (402) witnesses direct cross redirect recross vol.

Stockdale, 40902mc 40923u 40926 202 Gretchen

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Speed, Terence 40745rh 40814n 40818rh 202 (Further) 40824n

Stockdale, 40902mc 40923u 40926 202 Gretchen

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

(None this volume)